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-   -   The Trials of Amanda Knox and Raffaele Sollecito: Part 31 (http://www.internationalskeptics.com/forums/showthread.php?t=347719)

Bill Williams 10th January 2022 07:35 PM

Quote:

Originally Posted by Numbers (Post 13700366)
The ball is in Italy's court. It is obligated under international law - the CoE treaty - to provide an Action Plan to the CoM showing how it will resolve its violations of Knox's rights and detailing the measures it will take to prevent any recurrence.

We're going in circles. Of course it is 'obligated'. But until the keepers of international law send in the troops to enforce the law, issue arrests, or collect fines....

..... there's no merit to the obligation.

Stacyhs 10th January 2022 08:07 PM

At this point, the ECHR is a toothless tiger. However, Italy did pay the fine to Amanda which at least shows an acknowledgement that they have an obligation to abide by its rulings. We can only hope they will follow through with the rest.

Numbers 11th January 2022 01:19 AM

Quote:

Originally Posted by Bill Williams (Post 13700556)
We're going in circles. Of course it is 'obligated'. But until the keepers of international law send in the troops to enforce the law, issue arrests, or collect fines....

..... there's no merit to the obligation.

Quote:

Originally Posted by Stacyhs (Post 13700570)
At this point, the ECHR is a toothless tiger. However, Italy did pay the fine to Amanda which at least shows an acknowledgement that they have an obligation to abide by its rulings. We can only hope they will follow through with the rest.

The statements above are, of course, accurate.

The ECHR has the authority to declare judgments and to order immediate measures (in cases of urgency) while the CoM has the authority to supervise the execution of those judgments and immediate measures by each respondent State.

There are, however, two enforcement methods that potentially may influence a respondent State to abide by its commitments to the Convention:

The CoE Parliamentary Assembly (PACE) can suspend the voting rights of a member State that is considered in violation of its responsibilities under the Convention. The only example of that was the suspension of Russia in the period 2014 - 2019; however, Russia responded by withholding its annual membership contributions (about 33 million euros/year).

An example of an apparently successful enforcement was the referral of Azerbaijan to the ECHR by the Committee of Ministers in 2017 with regard to the CoM's allegation that Azerbaijan had refused to abide by the ECHR's final judgment in the case Ilgar Mammadov v. Azerbaijan 15172/13. That first final judgment (2014) had explicitly called for Ilgar Mammadov to be immediately released from detention, on account of there being no grounds under the Convention for that detention; he was, according to the first ECHR judgment, arrested and detained solely for political reasons. The CoM then referred the case to the ECHR as an alleged violation of Convention Article 46.4. In 2019, the ECHR Grand Chamber examined the case and declared Azerjaiban in violation of Convention Article 46.4 and referred the case back to the CoM. Azerbaijan then acquitted and released Mammadov, as indicated in its Action Report and in Mammadov's confirming communication (both June, 2020).

Sources:

https://en.wikipedia.org/wiki/Council_of_Europe
See: Criticism and controversies

https://hudoc.echr.coe.int/eng?i=001-193543

https://hudoc.exec.coe.int/eng?i=004-49189

https://hudoc.exec.coe.int/eng?i=DH-DD(2020)486E

https://hudoc.exec.coe.int/eng?i=DH-DD(2020)365E

TomG 12th January 2022 11:35 AM

Quote:

Originally Posted by Bill Williams (Post 13700556)
We're going in circles. Of course it is 'obligated'. But until the keepers of international law send in the troops to enforce the law, issue arrests, or collect fines....

..... there's no merit to the obligation.

Maybe, but Amanda still has significant internet and media presence. If Italy were to be non-compliant in any way with the ECHR judgement, then the world would know about it.

Hoots

Numbers 12th January 2022 12:03 PM

Quote:

Originally Posted by Bill Williams (Post 13700556)
We're going in circles. Of course it is 'obligated'. But until the keepers of international law send in the troops to enforce the law, issue arrests, or collect fines....

..... there's no merit to the obligation.

Quote:

Originally Posted by Stacyhs (Post 13700570)
At this point, the ECHR is a toothless tiger. However, Italy did pay the fine to Amanda which at least shows an acknowledgement that they have an obligation to abide by its rulings. We can only hope they will follow through with the rest.

Quote:

Originally Posted by Numbers (Post 13700740)
The statements above are, of course, accurate.

The ECHR has the authority to declare judgments and to order immediate measures (in cases of urgency) while the CoM has the authority to supervise the execution of those judgments and immediate measures by each respondent State.

There are, however, two enforcement methods that potentially may influence a respondent State to abide by its commitments to the Convention:

....[/url]

Quote:

Originally Posted by TomG (Post 13701977)
Maybe, but Amanda still has significant internet and media presence. If Italy were to be non-compliant in any way with the ECHR judgement, then the world would know about it.

Hoots

For more information on the issue of respondent States not abiding by ECHR final judgments, see:

https://en.wikipedia.org/wiki/Europe...f_Human_Rights
under the heading "Effectiveness" and in particular the subheading "Implementation".

Here's a relevant quote from the above Wikipedia article; the data on non-implemented cases are from the end of 2016 and may not be valid currently:

Quote:

The number of non-implemented judgements rose from 2,624 in 2001 to 9,944 at the end of 2016, 48% of which had gone without implementation five years or more. In 2016, all but one of the 47 member countries of the Council of Europe had not implemented at least one ECtHR verdict in a timely fashion, although most non-implemented verdicts concern a few countries: Italy (2,219), Russia (1,540), Turkey (1,342), and Ukraine (1,172). More than 3,200 non-implemented judgements "concerned violations by security forces and poor detention conditions".
According to HUDOC EXEC, Italy currently (12 January 2022) has 54 pending leading cases and 110 pending other cases (repetitive or friendly settlement) awaiting final resolution, with 4146 cases of all types closed by final resolution. See (with appropriate filters in place):

https://hudoc.exec.coe.int

Stacyhs 12th January 2022 12:26 PM

Too bad some rich supporter doesn't say s/he'll foot the bill for Amanda to sue Italy.

If Amanda started a Go Fund Me in order to be able to go ahead and sue Italy, I can just hear the howls from the PGP now.

Numbers 12th January 2022 09:36 PM

Quote:

Originally Posted by Numbers (Post 13702000)
....

According to HUDOC EXEC, Italy currently (12 January 2022) has 54 pending leading cases and 110 pending other cases (repetitive or friendly settlement) awaiting final resolution, with 4146 cases of all types closed by final resolution. See (with appropriate filters in place):

https://hudoc.exec.coe.int

I've done some analysis of Italy's track record for the final resolution of leading ECHR cases compared to that of some of the other States based upon information in the HUDOC EXEC database. The data and analysis are current as of 12 January 2022.

Italy's percent of pending (open) leading cases out of total (pending + closed) leading cases before the Committee of Ministers is slightly less than the percentage for all 37 Council of Europe States combined:

Italy has a ratio of pending/total leading cases of 54/218 = 24.8% while all 37 CoE States combined have a ratio of 1251/4678 = 26.7%.

In contrast, three other large population western democracies have lower ratios; the UK's is 11/211 = 5.2%, France's is 24/304 = 7.9%, and Germany's is 13/84 = 15.5%.

On the other hand, some of the former Soviet bloc countries have much larger ratios: Ukraine's ratio is 104/209 = 49.8%, Russia's is 214/298 = 71.8%, and Azerbaijan's is 48/53 = 90.6%.

Italy has the second-oldest pending leading case amongst all the CoE States, with ECHR final judgment date 09/1997. The oldest pending case, against Turkey, has ECHR final judgment date 08/1993. For the other countries mentioned above, the oldest pending leading cases are against the UK (08/2001) and Russia (10/2002).

There certainly isn't enough information available to make a reasonable estimate of when the Committee of Ministers will declare the final resolution of the ECHR case Knox v. Italy. The CoM will only declare a final resolution if and when it is satisfied that the Individual and General Measures proposed and carried out by Italy are sufficient to redress the violations of Knox's rights and would tend to prevent future violations of the same nature.

TomG 14th January 2022 12:06 PM

Quote:

Originally Posted by Numbers (Post 13702386)

There certainly isn't enough information available to make a reasonable estimate of when the Committee of Ministers will declare the final resolution of the ECHR case Knox v. Italy. The CoM will only declare a final resolution if and when it is satisfied that the Individual and General Measures proposed and carried out by Italy are sufficient to redress the violations of Knox's rights and would tend to prevent future violations of the same nature.



Italy may be fully compliant with the ECHR judgement by providing legal guidelines to make sure that the violations are not repeated. They may also be fully compliant with reopening the calunnia trial according to the amended article 630, but if Amanda is personally unwilling to participate in the reopened trial they may then say that they have gone as far as they can in resolving the issue. They could then argue that if Amanda is not willing to participate in the reopened proceedings then why did she submit the complaint to the ECHR in the first place? TBH I'd have to agree.

Hoots

Numbers 14th January 2022 01:13 PM

Quote:

Originally Posted by TomG (Post 13703794)

Italy may be fully compliant with the ECHR judgement by providing legal guidelines to make sure that the violations are not repeated. They may also be fully compliant with reopening the calunnia trial according to the amended article 630, but if Amanda is personally unwilling to participate in the reopened trial they may then say that they have gone as far as they can in resolving the issue. They could then argue that if Amanda is not willing to participate in the reopened proceedings then why did she submit the complaint to the ECHR in the first place? TBH I'd have to agree.

Hoots

TomG, you've raised an interesting question (or series of questions) related to Italian law and ECHR/CoM law.

First, let's consider issues of Italian law relating to revision hearings.

CPP Article 629 provides that: Revision of a judgment of conviction may be {requested and} performed at any time in accordance with the cases allowed under the law {CPP Article 630 and Constitutional Court judgment Number 113 of 2011} at any time, even if the sentence has already been enforced or otherwise extinguished.

CPP Article 632 paragraph 1, section A) provides that: A convicted person or one next of kin or convicted person's guardian and, if the convicted person is deceased, his heir or next of kin may request revision of an allegedly {unfair (wrongful) in terms of the criteria of CPP Article 630 or Const. Court judgment No. 113/2011} conviction.

So it appears that Italy could not lawfully argue that Knox must ask for revision during some specific period of time that Italy proposes to the CoM.

Secondly, the ECHR judgment and CoM supervision are binding (within the margin of appreciation) on the States. While the ECHR will decide to cancel proceedings if an applicant does not respond to a request for information within a specific time, it is not clear to me that the CoM has a similar mechanism for cancelling supervision if the applicant does not act within a certain time based on a State's Action Plan. However, if the applicant writes to the CoM that he or she no longer wishes to pursue the matter, I suggest that the Individual Measures would be thus limited.

Thirdly, it does not appear to me, from Italian law, that Knox could be required to be present for a revision hearing. However, Knox might need to be present for any subsequent lawsuit to recover financial damages.

Numbers 14th January 2022 02:26 PM

Quote:

Originally Posted by Numbers (Post 13703842)
TomG, you've raised an interesting question (or series of questions) related to Italian law and ECHR/CoM law.

First, let's consider issues of Italian law relating to revision hearings.

CPP Article 629 provides that: Revision of a judgment of conviction may be {requested and} performed at any time in accordance with the cases allowed under the law {CPP Article 630 and Constitutional Court judgment Number 113 of 2011} at any time, even if the sentence has already been enforced or otherwise extinguished.

CPP Article 632 paragraph 1, section A) provides that: A convicted person or one next of kin or convicted person's guardian and, if the convicted person is deceased, his heir or next of kin may request revision of an allegedly {unfair (wrongful) in terms of the criteria of CPP Article 630 or Const. Court judgment No. 113/2011} conviction.

So it appears that Italy could not lawfully argue that Knox must ask for revision during some specific period of time that Italy proposes to the CoM.

Secondly, the ECHR judgment and CoM supervision are binding (within the margin of appreciation) on the States. While the ECHR will decide to cancel proceedings if an applicant does not respond to a request for information within a specific time, it is not clear to me that the CoM has a similar mechanism for cancelling supervision if the applicant does not act within a certain time based on a State's Action Plan. However, if the applicant writes to the CoM that he or she no longer wishes to pursue the matter, I suggest that the Individual Measures would be thus limited.

Thirdly, it does not appear to me, from Italian law, that Knox could be required to be present for a revision hearing. However, Knox might need to be present for any subsequent lawsuit to recover financial damages.

Here's a quote from a CoM website:

Quote:

Under Article 46 of the European Convention on Human Rights, judgments from the European Court of Human Rights are binding on the states concerned. The Committee of Ministers oversees the execution of judgments on the basis of information provided by the national authorities concerned, NGOs and other interested parties.
Source: https://www.coe.int/en/web/baku/-/im...ters-decisions

The text of Convention Article 46 makes no mention of any requirements on the applicant. See:

https://www.echr.coe.int/Documents/Convention_ENG.pdf

Here are some relevant excerpts from Article 46:

Quote:

ARTICLE 46
Binding force and execution of judgments
1. The High Contracting Parties undertake to abide by the final
judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the
Committee of Ministers, which shall supervise its execution.
3. If the Committee of Ministers considers that the supervision
of the execution of a final judgment is hindered by a problem of
interpretation of the judgment, it may refer the matter to the Court
for a ruling on the question of interpretation. A referral decision
shall require a majority vote of two-thirds of the representatives
entitled to sit on the committee.
4. If the Committee of Ministers considers that a High
Contracting Party refuses to abide by a final judgment in a case to
which it is a party, it may ... refer to the Court
the question whether that Party has failed to fulfil its obligation
under paragraph 1.
5. If the Court finds a violation of paragraph 1, it shall
refer the case to the Committee of Ministers for consideration
of the measures to be taken. ....

Bill Williams 15th January 2022 07:16 PM

The cost of a wrongful conviction. At 74 years old, she was exonerated after 27 years in prison. This, even though the pediatrician who'd testified against her admitted years later that her conclusions had been wrong.

https://www.cnn.com/2022/01/14/us/wo...rnd/index.html

The woman's co-accused/wrongfully convicted died just before his release.

Numbers 15th January 2022 09:54 PM

Quote:

Originally Posted by TomG (Post 13703794)
[/hilite]

Italy may be fully compliant with the ECHR judgement by providing legal guidelines to make sure that the violations are not repeated. They may also be fully compliant with reopening the calunnia trial according to the amended article 630, but if Amanda is personally unwilling to participate in the reopened trial they may then say that they have gone as far as they can in resolving the issue. They could then argue that if Amanda is not willing to participate in the reopened proceedings then why did she submit the complaint to the ECHR in the first place? TBH I'd have to agree.

Hoots

Quote:

Originally Posted by Numbers (Post 13703842)
TomG, you've raised an interesting question (or series of questions) related to Italian law and ECHR/CoM law.

First, let's consider issues of Italian law relating to revision hearings.

CPP Article 629 provides that: Revision of a judgment of conviction may be {requested and} performed at any time in accordance with the cases allowed under the law {CPP Article 630 and Constitutional Court judgment Number 113 of 2011} at any time, even if the sentence has already been enforced or otherwise extinguished.

CPP Article 632 paragraph 1, section A) provides that: A convicted person or one next of kin or convicted person's guardian and, if the convicted person is deceased, his heir or next of kin may request revision of an allegedly {unfair (wrongful) in terms of the criteria of CPP Article 630 or Const. Court judgment No. 113/2011} conviction.

So it appears that Italy could not lawfully argue that Knox must ask for revision during some specific period of time that Italy proposes to the CoM.

Secondly, the ECHR judgment and CoM supervision are binding (within the margin of appreciation) on the States. While the ECHR will decide to cancel proceedings if an applicant does not respond to a request for information within a specific time, it is not clear to me that the CoM has a similar mechanism for cancelling supervision if the applicant does not act within a certain time based on a State's Action Plan. However, if the applicant writes to the CoM that he or she no longer wishes to pursue the matter, I suggest that the Individual Measures would be thus limited.

Thirdly, it does not appear to me, from Italian law, that Knox could be required to be present for a revision hearing. However, Knox might need to be present for any subsequent lawsuit to recover financial damages.

TomG, to help analyze some of the important issues you have brought up, it may be useful to consider other ECHR cases that have some similarity to Knox v. Italy but also have some important differences.

One such case is Beuze v. Belgium [GC] 71409/10 9 Nov. 2018. Beuze was suspected of the murder of his girl friend and the attempted murder and rape of another woman. He was questioned by the police and held in police custody for some time without access to a lawyer. He denied these crimes but made several statements that were transparently likely false and/or clearly contradictory. He admitted being present during the murder (he claimed that he had been present when his girlfriend's son hit her with a hammer, and had attempted to stop the murder by grabbing the hammer). He had, previous to the murder, hit his girlfriend with his car, which he explained as unintentional and due to the car skidding.

There was also some arguably strong evidence against Beurze independent of his statements.

The ECHR did find that Beuze's trial had been unfair because of the lack of a lawyer during questioning and initial custody, and by the failure of the Belgian courts to adequately evaluate or restrict the evidence obtained from Beuze's statements made without a lawyer. However, the ECHR emphasized that while Beuze was thus entitled to a revision trial under Belgian law, it was not making any judgment about Beuze's guilt or innocence.

Here's the ECHR's conclusions (inline citations deleted for brevity):

Quote:

193. In conclusion, re-emphasising the very strict scrutiny that must be applied where there are no compelling reasons to justify the restriction on the right of access to a lawyer, the Court finds that the criminal proceedings brought against the applicant, when considered as a whole, did not cure the procedural defects occurring at the pre-trial stage, among which the following can be regarded as particularly significant:

{Five critical factors are listed in the text of the judgment, but for brevity are not shown in this quote.}

194. The Court finds it important to emphasise, as it has done in other cases under Article 6 § 1 of the Convention in which an assessment of the overall fairness of the proceedings was at issue, that it is not for the Court to act as a court of fourth instance .... In carrying out such an assessment, as required by Article 6 § 1, it must nevertheless carefully look at how the domestic proceedings were conducted, and very strict scrutiny is called for where the restriction on the right of access to a lawyer is not based on any compelling reasons. In the present case, it is the combination of the various above-mentioned factors, and not each one taken separately, which rendered the proceedings unfair as a whole.

195. Accordingly, there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
....

199. As the Court has found on many occasions, it does not follow from the Court’s finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention in the applicant’s case that he was wrongly convicted and it is impossible to speculate as to what might have occurred had there been no breach of the Convention .... In the circumstances of the present case, the Court takes the view that a finding of a violation constitutes in itself sufficient just satisfaction and it thus rejects the applicant’s claim.

200. The Court notes that Article 442bis of the {Belgian} Code of Criminal Procedure provides for the possibility of reopening the proceedings against a convicted person {based on a final judgment of the ECHR}.... It reiterates in this connection that while this may be regarded as an important aspect of the execution of its judgments, the reopening of proceedings is not the only way to execute a judgment of the Court. The use of this possibility in the present case will be a matter for assessment, if appropriate, by the Court of Cassation, having regard to domestic law and to the particular circumstances of the case.... It is for the national authorities and not the Court to settle this question.
See: https://hudoc.echr.coe.int/eng?i=001-187802

Beuze v. Belgium was finally resolved to the satisfaction of the CoM in February, 2020.

Here's the CoM's Status of Execution statement:

Quote:

Case closed. Main measures adopted:

Individual measures: The finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage. The applicant did not avail himself of the opportunity to request reopening of the impugned proceedings.

General measures: The legislative reform “Salduz”, which had been initiated after 2008 to take account of the evolution of ECtHR jurisprudence with regard to access rights to a lawyer, lead to the adoption of laws in 2011 and 2016 granting full access rights to legal assistance as from arrest and during interrogations by police and investigating judges at pre-trial stage as well as all subsequent investigative acts. Detailed information on the right to remain silent should also be communicated. Measures to implement the reform on a practical level were taken and its application is regularly reviewed. The judgement was published and disseminated to all authorities and courts concerned.
See: https://hudoc.exec.coe.int/eng?i=004-50769

According to the Action Report submitted by Belgium, Beuze did not request a revision of his conviction within the period (six-months after the date of the final ECHR judgment) legally established {presumably prior to the case*} in Article 442bis of the Belgian Code of Criminal Procedure:

Quote:

La Cour note que l’article 442bis du Code d’instruction criminelle ouvre la possibilité d’une réouverture de la procédure menée contre un condamné, en rappelant toutefois que la révision du procès n’est pas la seule façon d’exécuter un arrêt de la Cour. « La mise en œuvre de cette possibilité en l’espèce sera examinée, le cas échéant, par la Cour de cassation au regard du droit national et des circonstances particulières de l’affaire. Il appartient aux autorités nationales et non à la Cour de trancher cette question » (§ 200).

Force est de constater que le requérant n’a toutefois pas usé, dans le délai légal requis (soit au plus tard le 9 mai 2019 – six mois après l’arrêt définitif de la Cour), de sa possibilité d’introduire auprès de la Cour de cassation une demande de réouverture de la procédure pénale le concernant.

Par conséquent, au vu de ces éléments, les autorités considèrent qu’aucune mesure individuelle n’est encore requise aux fins de l’exécution de l’arrêt Beuze, définitif depuis le 9 novembre 2018.
See: https://hudoc.exec.coe.int/eng?i=DH-DD(2019)1495F

The differences between Knox v. Italy and Beuze v. Belgium are clear.

1. Knox v. Italy only concerned Knox's conviction for calunnia - charges based upon the statements she had made without a lawyer, in which the statements themselves were allegedly criminal under Italian law and legal precedent (CSC decisions).

2. There is no other actual evidence of Knox's alleged calunnia then those statements. However, Italy may falsely claim that there is other evidence, as in the Marasca CSC panel MR, in order to wrongfully deny revision.

3. There is no time limit under Italian law to apply for revision after a final judgment of the ECHR.

4. In Knox v. Italy, the ECHR seems to suggest, by listing these laws as applicable to the case, that under Italian laws (CPP Articles 178, 180, and 182), the lack of a lawyer during any of the judicial proceedings may be considered to result in a nullity (that is, as though the case never happened). Under ECHR case-law, the judicial proceedings against a person in a criminal case are considered to begin with the first interrogation of that person who is later brought to trial. According to CPP Article 178, representation by a lawyer [in criminal judicial proceedings] is considered mandatory and failure to comply with this results in a nullity. CPP Articles 63 and 64, among others, clearly indicate that Italian law requires the presence of a defense lawyer during interrogation.

5. The ECHR awarded Knox Just Satisfaction. It tends not to make such awards if it considers that the applicant is likely to be guilty but had been the victim of a procedural violation (and there are no violations of, for example, Articles 2 or 3).

See: https://hudoc.echr.coe.int/eng?i=001-189422
Paragraph 105: Articles 178, 180, 182

* This provision was apparently added to the Belgian Code of Criminal Procedure Article 442 in 2007.

See: https://www.senate.be/www/webdriver?...alObj=50335657

TomG 19th January 2022 11:19 AM

Quote:

Originally Posted by Numbers (Post 13704649)
TomG, to help analyze some of the important issues you have brought up, it may be useful to consider other ECHR cases that have some similarity to Knox v. Italy but also have some important differences.

One such case is Beuze v. Belgium [GC] 71409/10 9 Nov. 2018. Beuze was suspected of the murder of his girl friend and the attempted murder and rape of another woman. He was questioned by the police and held in police custody for some time without access to a lawyer. He denied these crimes but made several statements that were transparently likely false and/or clearly contradictory. He admitted being present during the murder (he claimed that he had been present when his girlfriend's son hit her with a hammer, and had attempted to stop the murder by grabbing the hammer). He had, previous to the murder, hit his girlfriend with his car, which he explained as unintentional and due to the car skidding.

There was also some arguably strong evidence against Beurze independent of his statements.

The ECHR did find that Beuze's trial had been unfair because of the lack of a lawyer during questioning and initial custody, and by the failure of the Belgian courts to adequately evaluate or restrict the evidence obtained from Beuze's statements made without a lawyer. However, the ECHR emphasized that while Beuze was thus entitled to a revision trial under Belgian law, it was not making any judgment about Beuze's guilt or innocence.

Here's the ECHR's conclusions (inline citations deleted for brevity):



See: https://hudoc.echr.coe.int/eng?i=001-187802

Beuze v. Belgium was finally resolved to the satisfaction of the CoM in February, 2020.

Here's the CoM's Status of Execution statement:



See: https://hudoc.exec.coe.int/eng?i=004-50769

According to the Action Report submitted by Belgium, Beuze did not request a revision of his conviction within the period (six-months after the date of the final ECHR judgment) legally established {presumably prior to the case*} in Article 442bis of the Belgian Code of Criminal Procedure:



See: https://hudoc.exec.coe.int/eng?i=DH-DD(2019)1495F

The differences between Knox v. Italy and Beuze v. Belgium are clear.

1. Knox v. Italy only concerned Knox's conviction for calunnia - charges based upon the statements she had made without a lawyer, in which the statements themselves were allegedly criminal under Italian law and legal precedent (CSC decisions).

2. There is no other actual evidence of Knox's alleged calunnia then those statements. However, Italy may falsely claim that there is other evidence, as in the Marasca CSC panel MR, in order to wrongfully deny revision.

3. There is no time limit under Italian law to apply for revision after a final judgment of the ECHR.

4. In Knox v. Italy, the ECHR seems to suggest, by listing these laws as applicable to the case, that under Italian laws (CPP Articles 178, 180, and 182), the lack of a lawyer during any of the judicial proceedings may be considered to result in a nullity (that is, as though the case never happened). Under ECHR case-law, the judicial proceedings against a person in a criminal case are considered to begin with the first interrogation of that person who is later brought to trial. According to CPP Article 178, representation by a lawyer [in criminal judicial proceedings] is considered mandatory and failure to comply with this results in a nullity. CPP Articles 63 and 64, among others, clearly indicate that Italian law requires the presence of a defense lawyer during interrogation.

5. The ECHR awarded Knox Just Satisfaction. It tends not to make such awards if it considers that the applicant is likely to be guilty but had been the victim of a procedural violation (and there are no violations of, for example, Articles 2 or 3).

See: https://hudoc.echr.coe.int/eng?i=001-189422
Paragraph 105: Articles 178, 180, 182

* This provision was apparently added to the Belgian Code of Criminal Procedure Article 442 in 2007.

See: https://www.senate.be/www/webdriver?...alObj=50335657


I think that a re-opening of legal proceedings is a non-starter from what Amanda has said. I agree that Amanda shouldn't even have to testify in court or take action that in any way would legitimise the calunnia conviction. The violations "undermined" and "compromised the fairness of the proceedings as a whole"; therefore, there should be some mechanism in place that would allow Italy to overturn the conviction with no further distress to the injured party (Amanda). I think that's what Amanda should be gunning for. An 80k Euro outlay to fight the conviction is completely outrageous as far as I'm concerned.

Hoots

Numbers 19th January 2022 12:04 PM

Quote:

Originally Posted by TomG (Post 13707402)
I think that a re-opening of legal proceedings is a non-starter from what Amanda has said. I agree that Amanda shouldn't even have to testify in court or take action that in any way would legitimise the calunnia conviction. The violations "undermined" and "compromised the fairness of the proceedings as a whole"; therefore, there should be some mechanism in place that would allow Italy to overturn the conviction with no further distress to the injured party (Amanda). I think that's what Amanda should be gunning for. An 80k Euro outlay to fight the conviction is completely outrageous as far as I'm concerned.

Hoots

There is a legal mechanism by which Italy could begin the revision process without any involvement from Knox.

According to CPP Article 632, paragraph 1, section B, the General Public Prosecutor attached to the Court of Appeal in the district where the conviction occurred may bring a request for revision. The convicted person is allowed to join such action.

Again, there is no time limit for applying for revision in Italy, whether the application is by the convicted person or a prosecutor.

One potentially important limitation on applications for revision is contained in the text of CPP Article 641. According to that article, if a request for revision is rejected as inadmissible or if a revision is finally rejected, a new request may be submitted, but the arguments for revision must be different than those in the rejected request. This could be a "gotcha" if, for example, the Italian courts finally reject a request and there is only one reasonable argument supporting the request. CPP Article 641 suggests a need for caution in proceeding with a request for revision without some assurance that the courts would not wrongfully reject it. This may be one reason for caution on the part of Knox and her lawyers.

BTW, the slowness of the Italian judicial system is well-known. Here's a report on a civil case in which neighbors complained of a noisy toilet (apparently in an adjacent flat or dwelling) in a case which began in 2003 and which was just resolved (in 2022), 19 years later. As stated in the Independent:

Quote:

The toilet saga highlights the glacial speed of the Italian justice system, something the country’s prime minister Mario Draghi pledged to address last year.

The resolution of the bathroom dispute took longer than Albert Einstein did to develop his theory of relativity, one Italian newspaper remarked.

“If Franz Kafka had been an Italian citizen of today he would not have written ’The Trial,’ he would have written ‘The Toilet’ to describe justice in our country,” the journalist Massimiliano Parente wrote in the Milanese daily Il Giornale.

“At the judicial level, we are a big, huge, gigantic clogged toilet,” he added.
Source: https://www.independent.co.uk/news/w...-b1996269.html

Stacyhs 19th January 2022 04:56 PM

Quote:

Originally Posted by Numbers (Post 13707460)
There is a legal mechanism by which Italy could begin the revision process without any involvement from Knox.

According to CPP Article 632, paragraph 1, section B, the General Public Prosecutor attached to the Court of Appeal in the district where the conviction occurred may bring a request for revision. The convicted person is allowed to join such action.

Again, there is no time limit for applying for revision in Italy, whether the application is by the convicted person or a prosecutor.

One potentially important limitation on applications for revision is contained in the text of CPP Article 641. According to that article, if a request for revision is rejected as inadmissible or if a revision is finally rejected, a new request may be submitted, but the arguments for revision must be different than those in the rejected request. This could be a "gotcha" if, for example, the Italian courts finally reject a request and there is only one reasonable argument supporting the request. CPP Article 641 suggests a need for caution in proceeding with a request for revision without some assurance that the courts would not wrongfully reject it. This may be one reason for caution on the part of Knox and her lawyers.

BTW, the slowness of the Italian judicial system is well-known. Here's a report on a civil case in which neighbors complained of a noisy toilet (apparently in an adjacent flat or dwelling) in a case which began in 2003 and which was just resolved (in 2022), 19 years later. As stated in the Independent:



Source: https://www.independent.co.uk/news/w...-b1996269.html

I think that is true!

Welshman 22nd January 2022 03:15 PM

Quote:

Originally Posted by Numbers (Post 13707460)
There is a legal mechanism by which Italy could begin the revision process without any involvement from Knox.

According to CPP Article 632, paragraph 1, section B, the General Public Prosecutor attached to the Court of Appeal in the district where the conviction occurred may bring a request for revision. The convicted person is allowed to join such action.

Again, there is no time limit for applying for revision in Italy, whether the application is by the convicted person or a prosecutor.

One potentially important limitation on applications for revision is contained in the text of CPP Article 641. According to that article, if a request for revision is rejected as inadmissible or if a revision is finally rejected, a new request may be submitted, but the arguments for revision must be different than those in the rejected request. This could be a "gotcha" if, for example, the Italian courts finally reject a request and there is only one reasonable argument supporting the request. CPP Article 641 suggests a need for caution in proceeding with a request for revision without some assurance that the courts would not wrongfully reject it. This may be one reason for caution on the part of Knox and her lawyers.

BTW, the slowness of the Italian judicial system is well-known. Here's a report on a civil case in which neighbors complained of a noisy toilet (apparently in an adjacent flat or dwelling) in a case which began in 2003 and which was just resolved (in 2022), 19 years later. As stated in the Independent:



Source: https://www.independent.co.uk/news/w...-b1996269.html

Taking 19 years to resolve a dispute over a noisy toilet is a typical example of how dysfunctional the Italian justice system is. It is beyond me how the nutjobs at TJMK can claim the Italian justice is wonderful.

TomG 23rd January 2022 06:28 AM

Quote:

Originally Posted by Numbers (Post 13707460)
There is a legal mechanism by which Italy could begin the revision process without any involvement from Knox.

According to CPP Article 632, paragraph 1, section B, the General Public Prosecutor attached to the Court of Appeal in the district where the conviction occurred may bring a request for revision. The convicted person is allowed to join such action.

Again, there is no time limit for applying for revision in Italy, whether the application is by the convicted person or a prosecutor.

Amanda has made it clear that she doesn't want to embroil herself in the past by taking part in legal proceedings. As I understand it, the revision would have to be requested by Amanda. If that's the case then reopened proceedings might well confirm the calunnia for purely legal reasons unconnected with the human rights violations. Amanda has already said that legal measure to overturn the calunnia conviction brought "no guarantee of success."

The way I see it though, is that Italy would have to provide a final action plan that gives Amanda no legal traction to overturn the calunnia. IMO it would take some doing. If Italy were to make amendments to existing laws or admit that these laws were not complied with as part of the action plan it would surely make the calunnia conviction unsustainable? That might be enough give Amanda restitutio in integrum and closure, similar to the Beuze case, without having to resort to a revision trial. That would mean that she would have to live with a wrongly convicted label, unless she chose to opt for a revision trial in the future.

Here's another link that might be useful. Apologies if you are already familiar with it.

https://rm.coe.int/guide-drafting-ac...ing%20document.

Numbers 23rd January 2022 08:54 AM

Quote:

Originally Posted by TomG (Post 13711004)
Amanda has made it clear that she doesn't want to embroil herself in the past by taking part in legal proceedings. As I understand it, the revision would have to be requested by Amanda. If that's the case then reopened proceedings might well confirm the calunnia for purely legal reasons unconnected with the human rights violations. Amanda has already said that legal measure to overturn the calunnia conviction brought "no guarantee of success."

The way I see it though, is that Italy would have to provide a final action plan that gives Amanda no legal traction to overturn the calunnia. IMO it would take some doing. If Italy were to make amendments to existing laws or admit that these laws were not complied with as part of the action plan it would surely make the calunnia conviction unsustainable? That might be enough give Amanda restitutio in integrum and closure, similar to the Beuze case, without having to resort to a revision trial. That would mean that she would have to live with a wrongly convicted label, unless she chose to opt for a revision trial in the future.

Here's another link that might be useful. Apologies if you are already familiar with it.

https://rm.coe.int/guide-drafting-ac...ing%20document.

TomG, thanks for reposting the link to the CoM's reference document on Action Plans and Action Reports, part of their "vade-mecum" [reference, guide-book] series.

Under Italian law, CPP Article 632, either the convicted person (or next of kin etc.) and/or a prosecutor (of the convicting judicial district) can request a revision hearing. Whether or not a prosecutor would in this case make such a request on his/her own motion or if, for example, requested by the Italian government, is unknown to me. In Italy, prosecutors serve under the judicial branch of government, and not under the executive branch of government. However, the government representatives that participates in the Council of Europe (CoM and ECHR) are from the executive branch.

Italian law CPP Article 630 and Italian Constitutional Court judgment 113 of 2011 provide only the right to make a request (application) for a revision hearing under certain circumstances described in the law or because of a final ECHR judgment. The decisions to 1) find a request for revision admissible and then 2) to grant a revision of a conviction following the judicial review of an admissible request for revision are each made by an Italian Court of Appeal.

Decisions on the admissibility of the revision or on granting the revision may be appealed to the Italian Supreme Court of Cassation (CSC) by the requestor or the (opposing) prosecutor. A CSC ruling may overturn a judgment of a Court of Appeal of inadmissibility or against revision, and in such case refer the case to a different Court of Appeal.

Under Italian law, a final decision of inadmissibility or against a request for revision precludes requesting revision again under those same arguments.

Whether or not the convicted person in a revision hearing must appear before the Court of Appeal is not explicitly stated, IIUC, under Italian law. It may depend upon the circumstances of the case. According to CPP Article 636, the revision hearing must follow the applicable provisions of CPP Book VII, Titles I and II. This means CPP Articles 465 through 524, as applicable - that is, potentially, a full trial, but limited under CPP Article 636 to cover only the reasons specified in the request for revision.

I think, based upon all the apparent ambiguities or complexities in the Italian law, and the potential for arbitrary Italian court judgments, it is understandable that Amanda Knox may wish to wait for Italy's Action Plan before committing to seeking revision of the calunnia conviction. Furthermore, it should be understood that she is under no legal or moral obligation to seek revision. However, Italy has the solemn obligation, under international law (the Convention - CoE - treaty) to redress its violations of her rights and to take measures to prevent any future violations of the rights that were declared in the ECHR final judgment Knoan x v. Italy.

One potential scenario for revision would be for an Italian prosecutor to request revision based on the ECHR final judgment and the reasoning that the trial and conviction for calunnia should be nullified based upon Italian law CPP Articles 178 and 179. Knox did not receive legal representation during the interrogation and therefore the Italian judicial authorities should nullify her conviction ex officio.

Numbers 8th February 2022 10:34 PM

To see that the Council of Europe system - ECHR final judgment followed by Respondent State action, under the supervision of the CoM, to comply with the judgment, generally does work (even if slowly), one may examine a recent publication of the Department for the Execution of Judgments of the ECHR (a department serving the CoM).

The 132 page publication "Summaries of Final Resolutions adopted by the Committee of Ministers in 2021"* consists of a table of the finally resolved cases organized by Respondent State following English alphabetical order. The table entries with a bolded left-side border are considered "highlighted" for special interest by the Department.

Cases resolved through Friendly Settlements (the approximate equivalent of out-of-court settlements) are excluded from the publication.

The cases against Italy finally resolved in 2021 are listed on pages 52 - 57. Highlighted cases include Cafagna v. Italy 26073/13, Huzuneanu v. Italy 36043/08, and Lorefice v. Italy 63446/13. These all concern applicants in criminal cases where there were violations of rights by the Italian judicial system as declared by the ECHR, and in that sense are relevant to Knox v. Italy.

* https://rm.coe.int/final-resolutions...-en/1680a2ea1c

Numbers 21st February 2022 08:40 AM

Raffaele Sollecito's application to the ECHR regarding the allegedly unjust denial by the Italian courts of his compensation for unfair detention has become a case before the ECHR by the ECHR's Communication to Italy as of 1 February 2022.

Here's a translation of the core of that Communication.

Sollecito v. Italy, ECHR Communication 1 Feb 2022, published 21 Feb 2022. Questions to the Parties (Google translation):

1. Whether the dispute over the applicant's right to compensation for “unjust” detention was heard fairly, as required by Article 6 § 1 of the Convention (López Ribalda and Others v. Spain [GC] , nos. 1874/13 and 8567/13, § 150, October 17, 2019)?

In particular, taking into account Article 63 of the Code of Criminal Procedure and the relevant domestic case law (see, among others, Court of Cassation judgments nos. 3620/2008, 38181/2009, 49771/2013, /2014 and 882/2018), were the statements made by the applicant before his indictment usable by the courts entrusted with the claim for compensation for “unjust” pre-trial detention? How were these statements assessed by these same courts?



2. Was the right to the presumption of innocence guaranteed by Article 6 § 2 of the Convention respected in the present case with regard to the applicant (Allen v. the United Kingdom [GC], no. 25424/09, § 94, ECHR 2013, Vlieeland Boddy and Marcelo Lanni v. Spain, nos. 53465/11 and 9634/12, §§ 38-49, February 16, 2016)?

In particular, given that the Court of Cassation examined the arguments put forward by the applicant in his appeal, do the reasons provided by the high court cast doubt on the applicant's innocence? Do they refer to a possible criminal responsibility of the applicant or to the persistent suspicions weighing against him?

Source: https://hudoc.echr.coe.int/eng?i=001-215997

Numbers 21st February 2022 08:57 AM

From the ECHR Communication to Italy in the case Sollecito v. Italy 1157/18, here is the Google translation of the "Subject of the Case":

Quote:

SUBJECT OF THE CASE

The application concerns the dismissal of the request for compensation for the pre-trial detention of the applicant, accused of participation in the offenses of sexual violence and murder of a British national. At the material time, the applicant was the boyfriend of A.K., the victim's roommate. On November 2, 2007, the police went to the latter's home and, after forcing the door of her room, discovered her body lying on the ground. During the following days, the applicant was heard twice and answered questions from the judicial police in the absence of a lawyer, in accordance with Article 351 of the Code of Criminal Procedure relating to the acquisition of summary information. In particular, he was questioned about the sequence of events and the movements of A.K. during the hours preceding the murder. On 6 November the prosecutor ordered the arrest of the applicant, A.K. and a third person and brought charges of sexual assault and murder against them (for further details see Knox v. Italy, no. 76577/13, 24 January 2019).

Following his final acquittal, the applicant submitted a claim for compensation for “unjust” pre-trial detention under Article 314 of the Code of Criminal Procedure. The domestic courts dismissed the application, finding that, through his conduct and his contradictory statements, the applicant had contributed through gross negligence to arousing suspicion against him and thus to his detention. In particular, in the reasoning were recalled the statements made by the applicant before his indictment, which could not be used in the criminal trial under the terms of Article 63 of the Code of Criminal Procedure. In those statements, the applicant recounted in detail the events of the previous day, in particular the behavior and movements of A.K. the day before the discovery of the victim's body. The domestic courts also referred to certain passages of the trial courts' judgments relating to the assessment of the applicant's criminal liability.
Source: https://hudoc.echr.coe.int/eng?i=001-215997

Numbers 21st February 2022 09:04 AM

How is the case Sollecito v. Italy significant?

1. If the ECHR decides in Sollecito's favor, it will establish an obligation under international (CoE) law for Italy to fairly redress his claims for compensation.

2. Also, it will essentially (in principle) establish an additional obligation under international law (CoE) for Italy to fairly consider any action that Knox takes to seek revision and, if she seeks it, compensation, for her unjust detention.

Numbers 21st February 2022 10:44 AM

In an attempt to predict how the ECHR will rule in the case Sollecito v Italy, it may be useful to consider the nature of the claimed violations of the Convention and the case-law cited by the ECHR in its Communication.

1. The first claim appears to be that Italy violated Convention Article 6.1 in the compensation hearings (which under ECHR case-law are considered a continuation of the criminal proceedings) by not following Italian law (CPP Article 63) or CSC case-law.

Evaluating how the ECHR will rule on this is not necessarily simple, based on the ECHR case-law. According to that case-law, mere violation of domestic law does not make the compensation hearing unfair under the Convention, but rather the totality of the circumstances in the case. Here's the text of the ECHR citation*:

Quote:

150. It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found ....
[inline citations omitted.]

My impression is that the way the evidence was obtained and used in Sollecito's compensation hearing was unfair. I am not sure whether or not the ECHR would agree with that impression. For example, the ECHR may find it was not unfair because Sollecito was allowed to dispute the impugned evidence during the compensation hearing. On the other hand, the ECHR may find that the final judgment of the compensation hearing was arbitrary by not concluding that the impugned evidence was unusable based upon Sollecito's lawyers' arguments and Italian law and Convention Article 6.3C.

2. The second claim appears to be that Italy violated Convention Article 6.2, the presumption of innocence, resulting in an unfair hearing and judgment. A look at the ECHR case-law citation, AFFAIRE VLIEELAND BODDY ET MARCELO LANNI c. ESPAGNE 53465/11 9634/12 Paragraphs 38 - 49, seems to strongly support that claim. For example, Paragraph 39 states (Google translation):

Quote:

.... [T]he expression of suspicions about the innocence of an accused is no longer acceptable after an acquittal has become final.... Once the final acquittal – even if it is an acquittal on the benefit of the doubt –, in accordance with Article 6 § 2 of the Convention, the expression of doubts as to guilt, including those based on grounds for acquittal, are not compatible with the presumption of innocence ....

* https://hudoc.echr.coe.int/eng?i=001-197098

Stacyhs 21st February 2022 06:47 PM

Quote:

Quote:
.... [T]he expression of suspicions about the innocence of an accused is no longer acceptable after an acquittal has become final.... Once the final acquittal – even if it is an acquittal on the benefit of the doubt –, in accordance with Article 6 § 2 of the Convention, the expression of doubts as to guilt, including those based on grounds for acquittal, are not compatible with the presumption of innocence ....
Isn't this exactly what Marasca did when they talked about "strong suspicions" that remained?

Numbers 21st February 2022 11:16 PM

Quote:

Originally Posted by Stacyhs (Post 13737673)
Isn't this exactly what Marasca did when they talked about "strong suspicions" that remained?

Perhaps. The context of the phrase needs to be examined.

I don't know which part of the MR you are referencing. However, I found the phrase "strong suspicion" used in the part of the MR where the Marasca CSC panel attempted to show that various hypotheses of guilt were not supported by the evidence. Below is an examination of those uses of the phrase. It is clear that they actually are rebuttals of certainty of guilt on the murder and sexual assault charges, and thus support acquittal.

Section 9.4.1, for Amanda Knox:

p. 49, relating to alleged mixed DNA traces, the term was raised only to be rebutted:

Quote:

The data leads to strong suspicion, although not decisive, considering the well-known considerations regarding the certain nature and attribution of the traces in question.

Nevertheless, even if attribution is certain, the trial element would not be unequivocal as a demonstration of posthumous contact with that blood, as a likely attempt to remove the most blatant traces of what had happened, perhaps to help someone or deflect suspicion from herself, without this entailing her certain direct involvement in the murder.

Any further and more meaningful value would be, in fact, resisted by the fact - which is decisive - that no trace leading to her was found at the scene of the crime or on the victim’s body, so that - if all the above is accepted - her
contact with the victim’s blood would have occurred after the crime and in another part of the house.

On p. 50, inconsistencies or contradictions in Knox's statements compared to that of the witnesses are compared, but the witness statements are found to be unreliable:

Quote:

Elements of strong suspicion are connected to the inconsistencies and falsehoods made by the accused in the various statements she made .... [but Curatolo's statements showed he had confused Oct. 31 and Novi. 1, while Quintavalle's statements offered no certainty because they had changed over time and he apparently identified Knox based on the media coverage.]
Section 4.9.2, for Raffaele Sollecito:

p. 52 - 53.

Quote:

There remains, however, a strong suspicion that he was really present in the house on via della Pergola the night of the murder, at a time, however, that has not been possible to determine.
However, the MR explains that there is no credible evidence that Sollecito had been in the murder room, even if he was in the house on the night of the murder. The MR seems to attribute his presence in the cottage "logically" but absurdly on assumptions I list as 1 through 2c, with the conclusion in 3:

1. Sollecito and Knox were inseparable.

2a. Knox, in her (coerced) statement had said she was in the cottage at the time of the murder.

2b. Knox would have called Sollecito if she had been in the cottage during the murder and Sollecito had not been with her.

2c. Knox had not called Sollecito during the night of the murder.

3. Therefore, Sollecito was in the cottage when Knox was in the cottage at the time of the murder.

However, the MR then reiterates:

Quote:

... [Even if] Sollecito was with her, [that] does not prejudice, obviously, the juridical relevance of his mere presence in the house, without any certain proof of his contributing to the murder action.
The point here is that the Marasca CSC panel does not wish to suggest that Knox's statement in which she claimed to have been in the cottage at the time of the murder had been coerced. To do so would obviously attack her calunnia conviction, which was beyond their interpretation of their legal responsibility.

The MR also states that the computer evidence of human interaction in watching the movie cannot remove the "strong suspicions" that Sollecito was at the cottage on the night of the murder. Again, this apparently is part of the Marasca CSC panel's defense of the wrongful conviction of Knox for calunnia.

There are two more uses of the term "strong suspicion" in this section. One use is rebutted by the unreliability of the witnesses Curatolo and Quintavalle, and the other is not very coherently related in the MR to a rejection of other computer interactions on the night of the murder. Again, this last is apparently to benefit the Marasca CSC panel's defense of the wrongful calunnia conviction.

Finally, in this section, the MR notes that the alleged evidence provided no certainty that Sollecito had left any footprint in the cottage.

Stacyhs 22nd February 2022 12:24 AM

While I agree that Marasca could not be seen to undermine Knox's calunnia conviction by challenging the judicial truth that she was at the cottage that night, I disagree that had anything to do with RS. Knox never mentioned RS in either of her Nov. 5/6 statements and was never part of the calunnia case so there was no need for Marasca to present the 'reasons' it was unlikely he was not actually there. Therefore, Marasca is still putting him at the cottage when the murder happened when there was actually no evidence of him being there at all which "not compatible with the presumption of innocence", a violation of Article 6 § 2.

I think Marasca also tries to strengthen the judicial fact that Amanda was there that night when it states she washed her hands of Meredith's blood that night even if she had not come into contact with the blood in MK's bedroom and after MK's death. A claim not supported by a single piece of scientific evidence.

Numbers 22nd February 2022 06:57 AM

Quote:

Originally Posted by Stacyhs (Post 13737856)
While I agree that Marasca could not be seen to undermine Knox's calunnia conviction by challenging the judicial truth that she was at the cottage that night, I disagree that had anything to do with RS. Knox never mentioned RS in either of her Nov. 5/6 statements and was never part of the calunnia case so there was no need for Marasca to present the 'reasons' it was unlikely he was not actually there. Therefore, Marasca is still putting him at the cottage when the murder happened when there was actually no evidence of him being there at all which "not compatible with the presumption of innocence", a violation of Article 6 § 2.

I think Marasca also tries to strengthen the judicial fact that Amanda was there that night when it states she washed her hands of Meredith's blood that night even if she had not come into contact with the blood in MK's bedroom and after MK's death. A claim not supported by a single piece of scientific evidence.

These are interesting issues.

What the ECHR will do (I predict) in its judgment in Sollecito v. Italy - which may be composed and published a few years from now - is look at the actual compensation hearing judgments: how did they use the Marasca CSC panel MR, the ECHR's judgment in Knox v. Italy, any other previously documented information (whether true or false), and any facts, fabrications and logic contained within the compensation hearing judgments themselves. One issue might be whether the compensation hearing judgments used the hypothetical section of the Marasca CSC panel MR, including its false assumptions and erroneous conclusions such as the presence of Knox and Sollecito in the cottage during the night of the murder, to unfairly deny Sollectio compensation.

Stacyhs 22nd February 2022 11:01 AM

Out of curiosity, I wonder where Marasca thinks AK came into contact with MK's blood in the first place if she never entered MK's bedroom. After all, MK's blood wasn't found anywhere else in the cottage except for the small amount in the bathroom and in Guede's barely visible shoe prints in the hallway. If Knox never entered the bedroom, she could not be the source of blood transfer from the bedroom to the bathroom, meaning someone else was which could only be Guede. It's highly improbable that Knox would have transferred that wet blood from the shoeprints to her hands thus needing to wash them. The likelihood of Knox's DNA having been pre-existing in the sink, cotton bud box, etc and picked up along with MK's blood when the samples were taken is infinitely greater. Sometimes the logic used by the judges eludes me.

Numbers 22nd February 2022 11:47 AM

Quote:

Originally Posted by Numbers (Post 13738023)
These are interesting issues.

What the ECHR will do (I predict) in its judgment in Sollecito v. Italy - which may be composed and published a few years from now - is look at the actual compensation hearing judgments: how did they use the Marasca CSC panel MR, the ECHR's judgment in Knox v. Italy, any other previously documented information (whether true or false), and any facts, fabrications and logic contained within the compensation hearing judgments themselves. One issue might be whether the compensation hearing judgments used the hypothetical section of the Marasca CSC panel MR, including its false assumptions and erroneous conclusions such as the presence of Knox and Sollecito in the cottage during the night of the murder, to unfairly deny Sollectio compensation.

Quote:

Originally Posted by Stacyhs (Post 13738238)
Out of curiosity, I wonder where Marasca thinks AK came into contact with MK's blood in the first place if she never entered MK's bedroom. After all, MK's blood wasn't found anywhere else in the cottage except for the small amount in the bathroom and in Guede's barely visible shoe prints in the hallway. If Knox never entered the bedroom, she could not be the source of blood transfer from the bedroom to the bathroom, meaning someone else was which could only be Guede. It's highly improbable that Knox would have transferred that wet blood from the shoeprints to her hands thus needing to wash them. The likelihood of Knox's DNA having been pre-existing in the sink, cotton bud box, etc and picked up along with MK's blood when the samples were taken is infinitely greater. Sometimes the logic used by the judges eludes me.

This is a good question. But does the Marasca CSC panel MR actual state as fact that Knox's DNA and Kercher's DNA (or blood) were found mixed, or is this merely a hypothesis? IIUC, the Marasca CSC panel MR states that even if there were such a mixture, because no trace of Knox was found in the murder room, and no credible trace of Sollecito was found in the murder room, any such mixed trace was not credible evidence of guilt. The MR states that any such mixture happened outside the murder room and was not evidence that Knox had participated in the murder.

With regards to Sollecito v. Italy, that point about alleged mixed traces may not even be considered relevant to the formation of the ECHR judgment.

The ECHR may consider instead, primarily, whether the compensation hearing judgment had language suggesting Sollecito could have been guilty but was acquitted because of "insufficient evidence" and thus was not entitled to compensation (a violation of the Convention) or whether the language made clear, based on real and credible evidence, that compensation was denied because of "culpable negligence" in accordance with Italian law (which would not be a violation of the Convention).

This ECHR evaluation would include (primarily) whether, in accordance with the Convention and ECHR case-law:

1.Statements that he had made which were not admissible during the criminal proceedings could be used by the compensation hearing court, and if so, were those statements used fairly; and

2. In the CSC judgment rejecting Sollecito's appeal of the rejection of compensation by the Court of Appeals, did the language in that judgment cast doubt on his innocence, for example, by referring to a possible criminal responsibility or persistent suspicions against him.

If the ECHR does include any review of the Marasca CSC panel MR, it would be it relation to the second issue.

To gain a better understanding of the scope of what the ECHR review would include, one would need to examine the text of the CSC rejection of Sollecito's appeal for compensation and the text of the Court of Appeal rejection of his application for compensation. Do either of those texts mention or infer an allegation that there was credible evidence of Knox's and Kercher's DNA or blood being mixed?

Stacyhs 22nd February 2022 02:33 PM

" But does the Marasca CSC panel MR actual state as fact that Knox's DNA and Kercher's DNA (or blood) were found mixed, or is this merely a hypothesis?"

Yes, it does.

Quote:

Another element regarding her is represented by traces of mixed DNA, hers and
the victim’s, in the "small bathroom", an eloquent confirmation that she had come
into contact with the latter’s blood, which she tried to wash off (it seems we are
dealing with washed away blood, while the biological traces belonging to her are a
result of epithelial rubbing).
"IIUC, the Marasca CSC panel MR states that even if there were such a mixture, because no trace of Knox was found in the murder room, and no credible trace of Sollecito was found in the murder room, any such mixed trace was not credible evidence of guilt. The MR states that any such mixture happened outside the murder room and was not evidence that Knox had participated in the murder."

It was not credible evidence of them being involved in the murder, but certainly of them being in the cottage the night of the murder.


Quote:

The data leads to strong suspicion, although not decisive, considering the well-known considerations regarding the certain nature and attribution of the traces in
question.

Nevertheless, even if attribution is certain, the trial element would not be
unequivocal as a demonstration of posthumous contact with that blood, as a likely
attempt to remove the most blatant traces of what had happened, perhaps to help
someone or deflect suspicion from herself, without this entailing her certain direct
involvement in the murder
. Any further and more meaningful value would be, in fact, resisted by the fact - which is decisive - that no trace leading to her was found at the scene of the crime or on the victim’s body, so that - if all the above is accepted - her
contact with the victim’s blood would have occurred after the crime and in another
part of the house
.
Again, exactly where do they think this contact occurred? Did she wipe her hands on Guede's shoe prints in the hall? Did she wipe her hands in the bidet? Or get a cotton bud out of the box for some reason with bloody hands? It's just ludicrous to think that mixed DNA/blood was not mixed at the time the samples were taken and left at different times. Science and common sense tells us Knox's DNA would already be in that sink, in that bidet and on that cotton bud box in her own bathroom and not that she went around touching all those things the night of the murder.

I just don't see how Knox's statements have anything to do with RS because they did not mention him at all and it was those statements that got her convicted of calunnia. Even if they only based her conviction her first memoriale, she says "I stand by those statements I made last night"...statements which cannot be used as evidence per both the 2008 SC and ECHR rulings.

Numbers 22nd February 2022 04:45 PM

Quote:

Originally Posted by Stacyhs (Post 13738460)
" But does the Marasca CSC panel MR actual state as fact that Knox's DNA and Kercher's DNA (or blood) were found mixed, or is this merely a hypothesis?"

Yes, it does.



"IIUC, the Marasca CSC panel MR states that even if there were such a mixture, because no trace of Knox was found in the murder room, and no credible trace of Sollecito was found in the murder room, any such mixed trace was not credible evidence of guilt. The MR states that any such mixture happened outside the murder room and was not evidence that Knox had participated in the murder."

It was not credible evidence of them being involved in the murder, but certainly of them being in the cottage the night of the murder.




Again, exactly where do they think this contact occurred? Did she wipe her hands on Guede's shoe prints in the hall? Did she wipe her hands in the bidet? Or get a cotton bud out of the box for some reason with bloody hands? It's just ludicrous to think that mixed DNA/blood was not mixed at the time the samples were taken and left at different times. Science and common sense tells us Knox's DNA would already be in that sink, in that bidet and on that cotton bud box in her own bathroom and not that she went around touching all those things the night of the murder.

I just don't see how Knox's statements have anything to do with RS because they did not mention him at all and it was those statements that got her convicted of calunnia. Even if they only based her conviction her first memoriale, she says "I stand by those statements I made last night"...statements which cannot be used as evidence per both the 2008 SC and ECHR rulings.

Wasn't the DNA sampling of the bathroom sink done by swabbing the entire surface with one swab?

If that - or any similar improper collection method - was used, the DNA data from the sink is meaningless. It was contaminated by the collection method, because the DNA (or any blood) on the sink surface left by any user of the sink would be collected together to form a mixed sample.

So any conclusion regarding "contact" in terms of Knox actually touching Kercher's DNA or blood in the sink is nonsensical. The alleged "contact" was a contamination event that was an artifact of the collection method.

The Marasca CSC panel apparently were forgetting, unaware of, or not bothering to consider the method of DNA sample collection for the sink actually used by the police.

Most likely it is Sollecito's statements from the interrogation that are more likely at issue, not Knox's, for the ECHR case Sollecito v. Italy. But to be sure, one must examine the text of the relevant judgments - that is, the MRs for the Court of Appeals and CSC panel that each rejected Sollecito's request for compensation. I haven't seen those MRs, although I believe some excerpts may have been posted on this thread.

Stacyhs 22nd February 2022 08:46 PM

Quote:

Originally Posted by Numbers (Post 13738557)
Wasn't the DNA sampling of the bathroom sink done by swabbing the entire surface with one swab?

Pretty much so. Brocci went along the rim and down into the sink following the trail of the blood. It's a given that it also picked up any other pre-existing DNA. But try and explain that the gauze swab could not differentiate or separate Knox's DNA from Kercher's. It seems to be beyond their mental abilities.

Quote:

If that - or any similar improper collection method - was used, the DNA data from the sink is meaningless. It was contaminated by the collection method, because the DNA (or any blood) on the sink surface left by any user of the sink would be collected together to form a mixed sample.

So any conclusion regarding "contact" in terms of Knox actually touching Kercher's DNA or blood in the sink is nonsensical. The alleged "contact" was a contamination event that was an artifact of the collection method.
Yep. Pretty basic logic there.

Quote:

The Marasca CSC panel apparently were forgetting, unaware of, or not bothering to consider the method of DNA sample collection for the sink actually used by the police.
I think it was, again, an attempt to bolster the "she was there even if not involved in the murder itself" scenario.


Quote:

Most likely it is Sollecito's statements from the interrogation that are more likely at issue, not Knox's, for the ECHR case Sollecito v. Italy. But to be sure, one must examine the text of the relevant judgments - that is, the MRs for the Court of Appeals and CSC panel that each rejected Sollecito's request for compensation. I haven't seen those MRs, although I believe some excerpts may have been posted on this thread.
I looked on TMofMK and these are not provided. I've only read snippets that his own 'lies' are what got him arrested.

Numbers 23rd February 2022 10:23 AM

Quote:

Originally Posted by Stacyhs (Post 13738727)
Pretty much so. Brocci went along the rim and down into the sink following the trail of the blood. It's a given that it also picked up any other pre-existing DNA. But try and explain that the gauze swab could not differentiate or separate Knox's DNA from Kercher's. It seems to be beyond their mental abilities.



Yep. Pretty basic logic there.



I think it was, again, an attempt to bolster the "she was there even if not involved in the murder itself" scenario.




I looked on TMofMK and these are not provided. I've only read snippets that his own 'lies' are what got him arrested.

This is most likely to be a reference to the discrepancies between Sollecito's witness statement given 2 November with the 6 November alleged witness statement (actually an interrogation statement unlawfully obtained by the police, signed at 3:30 am, where Sollecito was denied the legally required defense rights).

One of the key questions in the ECHR case Sollecito v. Italy would appear to be whether the compensation hearing courts can use the 6 November statement against Sollecito as though it were a freely and lawfully given witness statement.

Stacyhs 23rd February 2022 11:53 AM

Quote:

Originally Posted by Numbers (Post 13739236)
This is most likely to be a reference to the discrepancies between Sollecito's witness statement given 2 November with the 6 November alleged witness statement (actually an interrogation statement unlawfully obtained by the police, signed at 3:30 am, where Sollecito was denied the legally required defense rights).

One of the key questions in the ECHR case Sollecito v. Italy would appear to be whether the compensation hearing courts can use the 6 November statement against Sollecito as though it were a freely and lawfully given witness statement.

Exactly.

Numbers 23rd February 2022 02:31 PM

Quote:

Originally Posted by Numbers (Post 13739236)
This is most likely to be a reference to the discrepancies between Sollecito's witness statement given 2 November with the 6 November alleged witness statement (actually an interrogation statement unlawfully obtained by the police, signed at 3:30 am, where Sollecito was denied the legally required defense rights).

One of the key questions in the ECHR case Sollecito v. Italy would appear to be whether the compensation hearing courts can use the 6 November statement against Sollecito as though it were a freely and lawfully given witness statement.

Quote:

Originally Posted by Stacyhs (Post 13739324)
Exactly.

I should reword my last statement to align with the ECHR's role in judging what state actions in the cases before it are allowable under international (Convention) law, as follows:

One of the key questions in the ECHR case Sollecito v. Italy would appear to be whether the compensation hearing courts use of the 6 November statement against Sollecito as though it were a freely and lawfully given witness statement was a violation of international law, the European Convention on Human Rights, that is binding upon Italy.

Stacyhs 4th March 2022 07:08 PM

Remember when Sherlock Mignini claimed he knew a woman was involved because only a woman would cover the body?

Steven Duxbury sexually assaulted and murdered Sasha Samsudean and then wrapped her in a bed comforter. Like Guede, the evidence was overwhelming: his DNA was inside her apartment and on her body even though he said he had never been in her apartment, video footage shows him taking her to her door (was was the building security guard), his phone showed he googled how to bypass the type of lock on her door the night she was killed but before the murder, and the shoes he was shown wearing that night in the video matched the shoe prints found in her apartment...shoes he deliberately did not give the police when asked. He also claimed he saw another man chasing Sasha. Duxbury had no past criminal record and was married. He was convicted and sentenced to life in prison.

Numbers 10th March 2022 07:32 AM

Those interested in how the ECHR applies the Convention and its case-law (international law of the Council of Europe states) may find this recent ECHR judgment, Tonkov v. Belgium, of interest:

https://hudoc.echr.coe.int/eng?i=002-13592

Knox v. Italy was one of the cases included in the case-law referenced. The ECHR found a violation of the right of a fair trial, Article 6 § 1 and § 3 (c), by Belgium in Tonkov v. Belgium, because statements obtained from the convicted person, obtained when he was supposedly a witness and not provided with a lawyer, were used to obtain his conviction for murder. On the other hand, the convicted person had been provided with an adequate interpreter during those questionings.

Numbers 10th March 2022 10:47 AM

Quote:

Originally Posted by Numbers (Post 13753476)
Those interested in how the ECHR applies the Convention and its case-law (international law of the Council of Europe states) may find this recent ECHR judgment, Tonkov v. Belgium, of interest:

https://hudoc.echr.coe.int/eng?i=002-13592

Knox v. Italy was one of the cases included in the case-law referenced. The ECHR found a violation of the right of a fair trial, Article 6 § 1 and § 3 (c), by Belgium in Tonkov v. Belgium, because statements obtained from the convicted person, obtained when he was supposedly a witness and not provided with a lawyer, were used to obtain his conviction for murder. On the other hand, the convicted person had been provided with an adequate interpreter during those questionings.

Here is a reference to Knox v. Italy as binding ECHR case-law in the ECHR judgment Tonkov v. Belgium, in paragraph 42 (Google translation):

Quote:

In reality, in the eyes of the Court, the applicant had acquired, from this initial stage of the investigation, the status of "accused" entailing the application of the guarantees of Article 6 of the Convention (see, mutatis mutandis, Truten v. Ukraine, no. 18041/08, § 66, 23 June 2016, and Knox v. Italy, no. 76577/13, § 152, 24 January 2019).
Source (in French):

https://hudoc.echr.coe.int/eng?i=001-216376

Methos 10th March 2022 03:47 PM

Just for the record (and the LOL's):
Delitto Kercher - Amanda Knox attacca gli investigatori: "Io vittima dell'ingiustizia"

If I were into conspiracy theories, I'd wonder what's more likely? That a retired Italian prosecutor reads a printed (the article is not available online) German magazine article, or that there really is a connection between Mignini and TJMK? ;)

Anyway, I can't stop laughing... :)

Numbers 10th March 2022 05:44 PM

Quote:

Originally Posted by Methos (Post 13753850)
Just for the record (and the LOL's):
Delitto Kercher - Amanda Knox attacca gli investigatori: "Io vittima dell'ingiustizia"

If I were into conspiracy theories, I'd wonder what's more likely? That a retired Italian prosecutor reads a printed (the article is not available online) German magazine article, or that there really is a connection between Mignini and TJMK? ;)

Anyway, I can't stop laughing... :)

It's revealing that retired Italian prosecutor Mignini seems to believe that there is a difference in quality between an acquittal in Italy on the basis of CPP Article 530 paragraph 2 and paragraph 1, and seems to be unaware that under Italian law, it is the final judgment (that is, one which cannot be appealed) that is definitive (except for convictions which may be subject to revision, such as because of a finding of an unfair trial by the ECHR):

Quote:

What, however, is not tolerable is the total omission of facts that cannot be questioned and which have become irretrievable or the false interpretation of judgments, which are pretended to have been issued in accordance with art. 530, first paragraph of the Criminal Code, while they were issued pursuant to art. 530, second paragraph of the same article, ie in an "attenuated" and "doubtful" form. Or again, the ignorance that there have been two convictions issued by two Courts of Assizes, first degree of Perugia and second degree, of Florence.
(Google translation of part of the statement attributed to Mignini.)

Source:

https://www.perugiatoday.it/cronaca/...stigatori.html

It also appears the Mignini ignores the Marasca CSC panel MR finding of "glaring errors", "investigative amnesia", and "culpable [guilty] omissions" in the investigation which he supervised.

Regarding the German-language article reproduced in TJMK, does it discuss the ECHR judgment Knox v. Italy? I see that the time-line on the third page does not seem to include any mention of the ECHR, since it jumps from 27 March 2015 (definitive acquittal of Knox and Sollecito) to 23 November 2021 (Guede released from prison).


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