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Tags Amanda Knox , Italy cases , Meredith Kercher , murder cases , Raffaele Sollecito

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Old 12th January 2020, 10:54 AM   #761
Numbers
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Originally Posted by whoanellie View Post
I fully appreciate the time and effort you've put into researching these issues.

I know I am dense, but it's not been clear to me on what your position is on how paragraphs 1 and 2 function together. This discussion of the translation of this one word does, I hope, help me to better understand your position. Thank you for helping me out. If I could use a silly example:

A: 1) I would wear my long johns if the temperature will be below freezing.
2) I would even wear my long johns if the temperature will be below 40F.

B: 1) would wear my long johns if I were going snowmobiling.
2) I would also wear my long johns if I were going sledding.

My interpretation of 530 has been more assuming it is analogous to B, yours (as I understand it) is analogous to A. You did use "also" in your translation in post #732 above. Your interpretation seems to me to be reasonable and I don't know which is correct. If the intention is for paragraphs 1 and 2 to work together to say "acquit if there is not proof beyond a reasonable doubt" it seems to me to be a long and odd way of getting there. The use of 2 distinct paragraphs, even if the 1st is an odd remnant of the inquisitorial system, does suggest to me different levels of proof or different levels of certainty on the part of the court.

I've not yet had time to find the discussion from long ago that I referenced above. I did however find this old post of Grinder's that may be pertinent:

"I will not state this again. There are no Italian legal experts posting here including myself. I do not know what the legal differences between a one and two are."

True to his word when subsequently asked for a legal difference between paragraph 1 and 2, Grinder did not reply.
Can you explain your use of "also" compared to "even" in your example, in the context of CPP Article 530?

What do you mean by "also" in B? It seems to me you're saying "as well". In either case, you are going to wear your long johns in either activity.

What do you mean by "even" in A? It seems to me you're saying that you will start wearing your long johns when the temperature is below 40 degrees F.

Entering the Italian "anche" alone into Google Translate gives the following translations, with the following frequencies in translated public documents:

also***, too**, as well**, besides*, even***, still*, so*, farther*.

*** = most frequent (three blue dashes on Google)
** = somewhat frequent (two blue dashes)
* = least frequent (one blue dash)

Collins Reverso points out that "anche" is a conjugation (joining word) and gives its translations as: "also, too" or "even".

In the Gialuz et. al translation of the CPP, they use "also" in Article 530, paragraph 2.

I also used "also" in my recent translation using Google and Collins.

You claim to understand that I mean "even".

Please explain what you mean by that; it's not clear to me from your example.

By "also", I take the meaning to be that in the context of CPP 530, that in addition to any case identified in paragraph 1 getting a judgment of acquittal, any case in paragraph 2 gets a judgment of acquittal, and the formulas (legally set clauses^) defining the reason for acquittal which paragraph 1 requires in the short-form (operative) verdict must be used as well for cases under paragraph 2.

The difference between paragraph 2 cases and those in paragraph 1 is that the evaluation of evidence can be explicitly inferred from the wording in paragraph 2, while no mention of evidence or its evaluation occurs explicitly or may be readily inferred from paragraph 1.

The formulas of the various types of acquittal as detailed in paragraph 1 and paragraph 3 are important under Italian law, because legal consequences such as civil liability or administrative discipline differ among cases identified with differing acquittal formulas, but not based upon differing paragraph numbers (that is, 1 versus 2). Examples of such Italian laws are CPP Articles 652 and 653.

While there may be no one posting on this thread who is an expert in Italian law, some of us have researched relevant Italian criminal law in more depth than others, just as some of us have researched relevant forensic DNA testing or other relevant topics more than others.

Anyone who wishes to claim that there is a legal or perceptual difference between paragraph 2 and paragraph 1 of CPP Article 530 should produce evidence from actual Italian legal cases (for a legal difference) or surveys of opinion or media (for a perception difference). Otherwise, such claims may be simply parroting fabricated or ill-informed claims, such as the fabricated claim that CSC annulments without referral are rare; in fact, based on published CSC statistics, they are nearly equal in number to those with referral (and have in some years exceeded annulments with referral).

^These four formulas are included in paragraph 1 and also used for paragraph 2 acquittals: "the accused did not commit the act", "the facts do not exist", "the act is not an offense", and "the accused may not be held responsible". The formulas used in the short-form verdict for acquittal may only be the ones from paragraph 1 or the one from paragraph 3 ("the act was committed with justification or exemption").

Last edited by Numbers; 12th January 2020 at 11:37 AM.
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Old 12th January 2020, 11:58 AM   #762
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From the Guide on Article 6 - Right to a Fair Trial (criminal limb), updated 31 December 2109. An ECHR publication

d.Conditions of interpretation

525.The obligation of the competent authorities is not limited to the appointment of an interpreter but, if they are put on notice in the particular circumstances, may also extend to a degree of subsequent control over the adequacy of the interpretation. Thus, a failure of the domestic courts to examine the allegations of inadequate services of an interpreter may lead to a violation of Article6 § 3 (e) of the Convention (Knox v. Italy, §§ 182-187)
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Old 12th January 2020, 12:03 PM   #763
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From the Guide on Article 6 - Fair Trial (criminal limb); the text discusses the ECHR case-law under Convention Article 6, paragraph 2:

310. Paragraph 2 of Article 6 embodies the principle of the presumption of innocence. It requires, inter alia, that: (1) when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; (2) the burden of proof is on the prosecution, and (3) any doubt should benefit the accused (Barberà, Messegué and Jabardo v. Spain, § 77).

311. Viewed as a procedural guarantee in the context of a criminal trial itself, the presumption of innocence imposes requirements in respect of, amongst others, the burden of proof (Telfner v. Austria, § 15); legal presumptions of fact and law (Salabiaku v. France, § 28; Radio France and Others v. France, §24); the privilege against self-incrimination (Saunders v. the United Kingdom, § 68); pre-trial publicity (G.C.P. v. Romania, § 46); and premature expressions, by the trial court or by other public officials, of a defendant’s guilt (Allenet de Ribemont, §§ 35-36, Nešťák v. Slovakia, § 88).

312. Article 6 § 2 governs criminal proceedings in their entirety, irrespective of the outcome of the prosecution, and not solely the examination of the merits of the charge, Poncelet v. Belgium, §50; Minelli v. Switzerland, §30; Garycki v. Poland, §68). Consequently, the presumption of innocence applies to the reasons given in a judgment acquitting the accused in its operative provisions, from which the reasoning cannot be dissociated. It may be breached if the reasoning reflects an opinion that the accused is in fact guilty (Cleve v. Germany, § 41).

The excerpts above apply to Italian and explain why the claims by pro-guilt posters and some others that the Marasca CSC panel judgment acquitting Knox and Sollecito under CPP Article 530 paragraph 2 because "the appellants did not commit the act" does not in any way imply to them any guilt. Nor does it suggest that the acquittal was of any lower quality in terms of the presumption of innocence than an acquittal under CPP Article 530 paragraph 1 (if indeed such paragraph 1 acquittals are actually given in practice since the CPP was reformed post-1988).

However, acquittals given under a formula such as "the accused did not have responsibility or mental capacity" (whether under paragraph 1 or 2) can have different legal consequences than acquittals for the other reasons.

For example:

CPP Article 652 Effects of the criminal judgment of acquittal in trials for civil or administrative damages

1. The final criminal judgment of acquittal delivered after a trial shall have binding effect, with relation to the ascertainment that:

the criminal act did not occur; or

the accused did not commit it; or

the act has been carried out to perform a duty or to exercise a legal right {that is, with justification}

in the civil or administrative trial for restitution and compensation of damages brought by the injured person or in his interest, provided that the injured has joined the proceedings as a civil party or has been given the possibility to join the proceedings, unless the injured has already brought the action in civil court, under Article 75, paragraph 2.

Translation from Gialuz et al.

Conclusions that may be inferred from the above:

1. Neither Knox nor Sollecito can ever have any civil liabilty to the Kerchers or to any other civil party that joined the criminal trial for the charges relating to the murder/rape of Meredith Kercher. That is because Knox and Sollecito were acquitted with the formula "the {accused} appellants did not commit the act {of the crime}".

2. Not all the formulas are given in CPP Article 652. The implication is that those acquitted under the formula "the accused is not responsible or lacks mental capacity" can have an obligation to provide restitution or compensation of damages.

CPP Article 653 is similar in its wording relating to administrative discipline, but also leaves possibly obligated to administrative discipline those acquitted under the formula "the accused had justification or exemption". Of course, administrative discipline is not relevant to Knox and Sollecito.

Last edited by Numbers; 12th January 2020 at 02:02 PM.
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Old 12th January 2020, 02:36 PM   #764
Numbers
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Originally Posted by Bill Williams View Post
In re-reading those old posts, I may have missed the nuance Grinder was putting on this. Indeed, his entrypoint to it all was trying to catch-out the old FOA's on themselves first claiming that 530.1 was a better acquittal than 530.2, because it had been assumed that the March 2015 acquittals had been based on 530.1. "This is the best possible outcome," had been the phrase.

What I may have missed is that Grinder had actually been arguing that 530.1 and 530.2 are different, just not one better than the other. There is actually NO quantitative sense that they are different, but semantically they are.

Meaning - there's no different legal outcome that results in one or the other.... but.... we've been over this obsessively, and at this point in 2020 people have long since got on with their lives.
Bill, I'm curious about what the FOA were actually claiming, and how much they actually knew about the relevant Italian laws.

For example, did they actually claim, as you appear to state, after the March 2015 acquittal was announced, that the acquittal was given under CPP Article 530 paragraph 1, even when the short-form verdict that announced the acquittal stated paragraph 2? Did they confuse the formula of "the accused did not commit the act" with a paragraph 1 acquittal? And that paragraph 2 represented some lesser level of acquittal? Because without stating paragraph number, that seems to be the confusion that Judge Heavey had in the YouTube talk.

My recollection is that Grinder was leaving open the possibility that paragraph 2 and 1 had different legal consequences but after he talked to his Italian lawyer, understood that there were no such differences.

And, of course the wording of paragraphs 2 and 1 are different. Paragraph 2 was added to cover the deficiency of paragraph 1 regarding the evaluation of evidence and the legal requirement (post 1988, more than only CSC jurisprudence) of guilty only if there is proof BARD.

Last edited by Numbers; 12th January 2020 at 02:41 PM.
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Old 12th January 2020, 03:22 PM   #765
whoanellie
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Originally Posted by Bill Williams View Post
In re-reading those old posts, I may have missed the nuance Grinder was putting on this. Indeed, his entrypoint to it all was trying to catch-out the old FOA's on themselves first claiming that 530.1 was a better acquittal than 530.2, because it had been assumed that the March 2015 acquittals had been based on 530.1. "This is the best possible outcome," had been the phrase.

What I may have missed is that Grinder had actually been arguing that 530.1 and 530.2 are different, just not one better than the other. There is actually NO quantitative sense that they are different, but semantically they are.

Meaning - there's no different legal outcome that results in one or the other.... but.... we've been over this obsessively, and at this point in 2020 people have long since got on with their lives.
Yes, that is exactly what Grinder was getting at. Numbers arguments aside, one and two can be seen as different reasons to get at the same legal result.

Here is an old post where I quote some of the even older posts from when the verdict was announced:

http://www.internationalskeptics.com...0#post11668060

He said he wasn't going to say it again, and until I butted in he didn't.
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Old 12th January 2020, 03:24 PM   #766
whoanellie
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Originally Posted by Numbers View Post
Can you explain your use of "also" compared to "even" in your example, in the context of CPP Article 530?
Apparently I still don't understand what you are getting at. No worries.

even if:
phrase of even
despite the possibility that; no matter whether.
"always try everything even if it turns out to be a dud"
despite the fact that.
"he is a great President, even if he has many enem

Definition of also
1: LIKEWISE sense 1
They also liked it.
2: in addition : BESIDES, TOO
She's a talented singer and also a fine actress.

Last edited by whoanellie; 12th January 2020 at 03:27 PM.
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Old 12th January 2020, 04:07 PM   #767
LondonJohn
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Boy oh boy!

In my understanding, the root problem here is that the Italian CPP (and much of Italian legislation as well, in fact) has merely been tinkered with over the years since its original (Fascist-era) drafting and introduction. Worse still perhaps, it also appears that Italian codemakers/lawmakers have often shoehorned the original codes/laws into the new overall frameworks. In both instances, what should of course have happened is that the codes/laws in question should have been torn up and rewritten from scratch.

And with respect to this particular situation - section 530 of the Italian CPP - I think that when Italy was effectively forced into adopting European Council standards for criminal justice (most notably the concepts of adversarial trials, "innocent until proven guilty BARD", and the prosecution burden of proof), the pre-existing 530 was just reverse-engineered into the new structure, rather than being torn up. To me, this reflects the reactionary nature of judiciaries and legislatures in general, and in Italy in particular.

As many have said - including (IIRC) both Numbers and Grinder - there really should be no separate 530.1 and 530.2 paragraphs any longer. Instead, there should be a single paragraph covering all "regular" acquittals, which states something like: "If the court does not deem that the accused's guilt for the crime has been proven BARD, then the accused shall be acquitted of this crime and the presumption of innocence shall prevail". In reality, there is no such thing in Italian law as one acquittal being somehow "better" or "more conclusive" than another.

But insofar as the (broken) Italian system does insist upon still using 530.1 or 530.2 in its acquittal judgements..... I believe that judges appear to employ them along the following lines:

530.1: If the court rules that no crime was even committed (e.g. a rape trial where the court concludes that the sexual intercourse was actually consensual), or if the accused can prove his/her innocence to the court (which it should be obvious would be rare in cases which make it as far as trial....).

530.2: All other types of "normal" acquittals - i.e. acquittals where a crime was committed, and where the accused cannot prove his/her innocence, but where the guilt of the accused has not been proven BARD.
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Old 12th January 2020, 05:10 PM   #768
Numbers
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Originally Posted by LondonJohn View Post
Boy oh boy!

In my understanding, the root problem here is that the Italian CPP (and much of Italian legislation as well, in fact) has merely been tinkered with over the years since its original (Fascist-era) drafting and introduction. Worse still perhaps, it also appears that Italian codemakers/lawmakers have often shoehorned the original codes/laws into the new overall frameworks. In both instances, what should of course have happened is that the codes/laws in question should have been torn up and rewritten from scratch.

And with respect to this particular situation - section 530 of the Italian CPP - I think that when Italy was effectively forced into adopting European Council standards for criminal justice (most notably the concepts of adversarial trials, "innocent until proven guilty BARD", and the prosecution burden of proof), the pre-existing 530 was just reverse-engineered into the new structure, rather than being torn up. To me, this reflects the reactionary nature of judiciaries and legislatures in general, and in Italy in particular.

As many have said - including (IIRC) both Numbers and Grinder - there really should be no separate 530.1 and 530.2 paragraphs any longer. Instead, there should be a single paragraph covering all "regular" acquittals, which states something like: "If the court does not deem that the accused's guilt for the crime has been proven BARD, then the accused shall be acquitted of this crime and the presumption of innocence shall prevail". In reality, there is no such thing in Italian law as one acquittal being somehow "better" or "more conclusive" than another.

But insofar as the (broken) Italian system does insist upon still using 530.1 or 530.2 in its acquittal judgements..... I believe that judges appear to employ them along the following lines:

530.1: If the court rules that no crime was even committed (e.g. a rape trial where the court concludes that the sexual intercourse was actually consensual), or if the accused can prove his/her innocence to the court (which it should be obvious would be rare in cases which make it as far as trial....).

530.2: All other types of "normal" acquittals - i.e. acquittals where a crime was committed, and where the accused cannot prove his/her innocence, but where the guilt of the accused has not been proven BARD.
This isn't quite correct.

CPP Article 530.2 does include where the was no crime committed.

CPP Article 530.1 does not include anything explicit stating how the accused makes a case - the accused was not allowed to participate in the investigation under the inquisitorial system. Thus, it would probably have been the investigating judge who would inform the trial judge, by means of the investigative dossier, that there was no crime committed, or that the accused hadn't committed it, etc.
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Old 12th January 2020, 06:18 PM   #769
whoanellie
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I've done a little googling and came up with the following citations that I believe are pertinent. I've not found anything specifically discussing section 530 but these seem to address the issue we are discussing.

From "The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation" by Pizzi and Marafioti in The Yale Journal of International Law (1992).

Quote:
The broad scope of appellate rights in Italy is exemplified by the right of
a defendant to appeal even an acquittal. This counter-intuitive result stems from
the fact that the Italian system provides for more than one type of acquittal.
Judges can choose from a range of acquittals. Ranging from strongest to
weakest
, the forms of acquittal are findings as follows: 1) that no crime was
committed; 2) that there was a crime, but the defendant did not commit it;
3)
that the defendant is innocent of the crime, because evidence was insufficient
to convict him; 4) that there was no crime, because the defendant had a
justification for his action (such as self-defense or necessity)
; or 5) that it was
not possible to decide the case due to a procedural fault. A defendant has the
right to appeal an acquittal to seek a stronger form of acquittal.
This supports the idea that there are different forms of acquittal and that they can be ranked in some way. It seems to me that 1 and 2 correspond to what some have ascribed to paragraph 1 (factual innocence), 3 to paragraph 2 (evidence not sufficient to prove guilt beyond a reasonable doubt), and 4 to paragraph 3 of 530.

The idea of different, ranked bases for an acquittal is further supported by "Italy: an overview of criminal procedure" a report to congress by the law library of Congress (2010).

Quote:
Article 597 of the C.P.P. establishes restrictions in the case of an appeal filed by the
accused. In such cases, the court may not:
(a) Impose a more serious penalty in terms of the nature of the offense or the severity of
punishment;
(b) Apply a new or more serious security measure;
(c) Acquit the accused for a reason less favorable than that mentioned in the appealed
decision;
(d) Revoke benefits.
In exceptional cases, the court may assign the facts a more serious legal definition,
provided that it does not exceed the jurisdiction of the trial court.
Again, these don't specifically address section 530 but, clearly, it is not just a handful of posters on some obscure internet forum who believe that the Italian allows for different rationales for acquittal and that these different rationales are favorable to the defendant to varying degrees. I've stated here before that if I were on trial in Italy for a crime I would rather be acquitted on the basis that "the defendant did not commit the crime" than "the evidence was insufficient to convict" me.
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Old 12th January 2020, 07:24 PM   #770
Numbers
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Originally Posted by whoanellie View Post
Apparently I still don't understand what you are getting at. No worries.

even if:
phrase of even
despite the possibility that; no matter whether.
"always try everything even if it turns out to be a dud"
despite the fact that.
"he is a great President, even if he has many enem

Definition of also
1: LIKEWISE sense 1
They also liked it.
2: in addition : BESIDES, TOO
She's a talented singer and also a fine actress.
The sense of "also" in the context of CPP Article 530 is that the text of paragraph 2 is an addition to the text of paragraph 1, so that the legal instructions and formulas of paragraph 1 apply to paragraph 2.

The legal instructions of paragraph 1 are twofold:

1. The judge shall deliver a judgment of acquittal. (It helps if one thinks of this "judgment of acquittal" as an object.

2. The judge shall state in the operative part of the judgment the cause (reason) for the judgment of acquittal.

There are 4 formulas of acquittal in paragraph 1. (A 5th is given in paragraph 3.) Here are the 4 formulas of paragraph 1:

1. The criminal act did not occur.

A more literal translation is "the fact does not exist" ("il fatto non sussiste").
This means that the prosecutor falsely believed or stated that there was a crime, or equivalently, the factual elements of the crime as defined by the Criminal Code were not satisfied.

2. The accused did not commit the crime.

A more literal translation is "the accused did not commit it [it = the fact {of the crime}]" ("l'imputato non lo ha commesso")

3. The act is not deemed an offense by law or it was not foreseen by law as a crime.

A more literal translation is "the fact is not an offense or not foreseen by law as an offense" ("il fatto non costituisce reato o non è previsto dalla legge come reato").

This includes cases where the act was not defined by law as a crime at the time it occurred and cases where there was no intent by the accused to commit a criminal act.

4. The crime was committed by a person who cannot be accused or punished for another reason.

A more literal translation is "the offense was committed by a person not imputable or not punishable for another reason" ("il reato è stato commesso da persona non imputabile o non punibile per un'altra ragione")

This covers persons not considered to have the mental capacity to want to commit or to have the volition to commit the act as a crime. Thus, minors and some with abnormal mental conditions (diminished mental capacity) may be acquitted under this formula. Criminal Code Article 85 applies:

Nessuno può essere punito per un fatto preveduto dalla legge come reato, se, al momento in cui lo ha commesso, non era imputabile.

È imputabile chi ha la capacità d'intendere e di volere.

Finally, paragraph 2 is a restatement, with some variation of the language, of paragraph 1, but with wording implying that evidence was evaluated and the evidence provided reasonable doubt of guilt. The judge also shall deliver a judgment of acquittal under paragraph 2. The judge also shall indicate the appropriate formula, indicating the reason for the acquittal, choosing from the ones in paragraph 1.

This is expressed as "missing, insufficient, or contradictory proof" ("manca, è insufficiente o è contraddittoria la prova") that the criminal act occurred, the accused committed it, the act is deemed an offense by law, or that the offense was committed by a person with mental capacity (literally, an "imputable person") ("il fatto sussiste, che l'imputato lo ha commesso, che il fatto costituisce reato o che il reato è stato commesso da persona imputabile").

I don't see why any of the above is complicated for anyone:

Paragraph 2 is simply an addition to Paragraph 1, but of course maintained as a separate paragraph for historical reasons, to accommodate the introduction into formal Italian law (explicit in CPP Article 533) of the principle that no accused may be convicted unless that accused is proven to be guilty beyond a reasonable doubt. The formulas specified in paragraph 1 are used for acquittals under paragraph 2.

What appears to be happening in this discussion is that X states "Look, the ocean is aqua" and Y disagrees strongly, stating, "NO! The ocean is a blue-green color". Or, Y states, "Look, that measuring stick is a little more than a meter long" and X states, "Absolutely NOT! I have measured it to be 40 inches long".

Last edited by Numbers; 12th January 2020 at 07:25 PM.
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Old 12th January 2020, 07:31 PM   #771
Numbers
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Originally Posted by whoanellie View Post
I've done a little googling and came up with the following citations that I believe are pertinent. I've not found anything specifically discussing section 530 but these seem to address the issue we are discussing.

From "The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation" by Pizzi and Marafioti in The Yale Journal of International Law (1992).



This supports the idea that there are different forms of acquittal and that they can be ranked in some way. It seems to me that 1 and 2 correspond to what some have ascribed to paragraph 1 (factual innocence), 3 to paragraph 2 (evidence not sufficient to prove guilt beyond a reasonable doubt), and 4 to paragraph 3 of 530.

The idea of different, ranked bases for an acquittal is further supported by "Italy: an overview of criminal procedure" a report to congress by the law library of Congress (2010).



Again, these don't specifically address section 530 but, clearly, it is not just a handful of posters on some obscure internet forum who believe that the Italian allows for different rationales for acquittal and that these different rationales are favorable to the defendant to varying degrees. I've stated here before that if I were on trial in Italy for a crime I would rather be acquitted on the basis that "the defendant did not commit the crime" than "the evidence was insufficient to convict" me.
Thus, the statement in your post reveals the bias in your opinion. You must have the two paragraphs as somehow different.

What if there were, in practice, no paragraph 1 acquittals actually given in Italy? Do you have any documentation of any such acquittals?

Can you copy into a post here on ISF, from each of your citations, the specific text that supports your position? Or at least point out the specific pages containing that text?

I don't find that the quote that you have supplied actually supports any legal difference between CPP Article 530 paragraph 1 and 2. It merely seems to indicate that the reasoning of the motivation report can differ from that of an appeal. It's not clear what "favorable" means in the quote, but it could refer to the formula of acquittal, not to the paragraph of the acquittal.

I regret I could not find such text in a very quick survey of the cited documents, although they are both informative (although the 1992 one is perhaps a bit dated). But I did look really quickly.

Last edited by Numbers; 12th January 2020 at 07:46 PM.
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Old 12th January 2020, 08:02 PM   #772
whoanellie
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Originally Posted by Numbers View Post
The sense of "also" in the context of CPP Article 530 is that the text of paragraph 2 is an addition to the text of paragraph 1, so that the legal instructions and formulas of paragraph 1 apply to paragraph 2.

The legal instructions of paragraph 1 are twofold:

1. The judge shall deliver a judgment of acquittal. (It helps if one thinks of this "judgment of acquittal" as an object.

2. The judge shall state in the operative part of the judgment the cause (reason) for the judgment of acquittal.

There are 4 formulas of acquittal in paragraph 1. (A 5th is given in paragraph 3.) Here are the 4 formulas of paragraph 1:

1. The criminal act did not occur.

A more literal translation is "the fact does not exist" ("il fatto non sussiste").
This means that the prosecutor falsely believed or stated that there was a crime, or equivalently, the factual elements of the crime as defined by the Criminal Code were not satisfied.

2. The accused did not commit the crime.

A more literal translation is "the accused did not commit it [it = the fact {of the crime}]" ("l'imputato non lo ha commesso")

3. The act is not deemed an offense by law or it was not foreseen by law as a crime.

A more literal translation is "the fact is not an offense or not foreseen by law as an offense" ("il fatto non costituisce reato o non è previsto dalla legge come reato").

This includes cases where the act was not defined by law as a crime at the time it occurred and cases where there was no intent by the accused to commit a criminal act.

4. The crime was committed by a person who cannot be accused or punished for another reason.

A more literal translation is "the offense was committed by a person not imputable or not punishable for another reason" ("il reato è stato commesso da persona non imputabile o non punibile per un'altra ragione")

This covers persons not considered to have the mental capacity to want to commit or to have the volition to commit the act as a crime. Thus, minors and some with abnormal mental conditions (diminished mental capacity) may be acquitted under this formula. Criminal Code Article 85 applies:

Nessuno può essere punito per un fatto preveduto dalla legge come reato, se, al momento in cui lo ha commesso, non era imputabile.

È imputabile chi ha la capacità d'intendere e di volere.

Finally, paragraph 2 is a restatement, with some variation of the language, of paragraph 1, but with wording implying that evidence was evaluated and the evidence provided reasonable doubt of guilt. The judge also shall deliver a judgment of acquittal under paragraph 2. The judge also shall indicate the appropriate formula, indicating the reason for the acquittal, choosing from the ones in paragraph 1.

This is expressed as "missing, insufficient, or contradictory proof" ("manca, è insufficiente o è contraddittoria la prova") that the criminal act occurred, the accused committed it, the act is deemed an offense by law, or that the offense was committed by a person with mental capacity (literally, an "imputable person") ("il fatto sussiste, che l'imputato lo ha commesso, che il fatto costituisce reato o che il reato è stato commesso da persona imputabile").

I don't see why any of the above is complicated for anyone:

Paragraph 2 is simply an addition to Paragraph 1, but of course maintained as a separate paragraph for historical reasons, to accommodate the introduction into formal Italian law (explicit in CPP Article 533) of the principle that no accused may be convicted unless that accused is proven to be guilty beyond a reasonable doubt. The formulas specified in paragraph 1 are used for acquittals under paragraph 2.

What appears to be happening in this discussion is that X states "Look, the ocean is aqua" and Y disagrees strongly, stating, "NO! The ocean is a blue-green color". Or, Y states, "Look, that measuring stick is a little more than a meter long" and X states, "Absolutely NOT! I have measured it to be 40 inches long".
The quote I provided above gives 5 forms of acquittal. You left one out.
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Old 12th January 2020, 08:15 PM   #773
whoanellie
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Originally Posted by Numbers View Post
Thus, the statement in your post reveals the bias in your opinion. You must have the two paragraphs as somehow different.
I have no idea what you mean by bias. A finding that "the defendant did not commit the crime" and "there is insufficient evidence to prove that the defendant committed the crime beyond a reasonable doubt" are indeed fundamentally different.

Originally Posted by Numbers View Post
What if there were, in practice, no paragraph 1 acquittals actually given in Italy? Do you have any documentation of any such acquittals? ............................ It's not clear what "favorable" means in the quote, but it could refer to the formula of acquittal, not to the paragraph of the acquittal.
I made the point that the issue isn't really paragraph 1 and paragraph 2. It's whether Italian Law distinguishes between an acquittal on the basis that the defendant did not commit the crime, the crime does not exist, and there is insufficient evidence to prove beyond a reasonable doubt that the crime exists and the defendant committed it. The last is the one you left out above. Hellmann gives the first two as reason for his acquittals on most charges. I've provide solid evidence that such a distinction is made. What 'favorable' means is that different forms of acquittal can be ranked. The ranking is given in the 1st citation I provided.

Originally Posted by Numbers View Post
Can you copy into a post here on ISF, from each of your citations, the specific text that supports your position? ....... But I did look really quickly.
I already have. PDF files are searchable. Pick a less common word in the quotes i provided and search for it.

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Old 12th January 2020, 09:38 PM   #774
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Originally Posted by whoanellie View Post
The quote I provided above gives 5 forms of acquittal. You left one out.
Yes. I did leave it out from that post. The reason I did is that that specific post was only about paragraphs 1 and 2. I didn't want to complicate the discussion more than necessary for that limited topic.

However, I have previously listed the five formulas for acquittal.

The fifth is in CPP Article 530 paragraph 3. It's the one about an acquittal for justification or exemption.

I'm beginning to suspect that you are not being thorough enough in reading my posts or perhaps in recalling their content to maintain a coherent, fair, and balanced discussion of the various details.

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Old 12th January 2020, 11:04 PM   #775
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Originally Posted by whoanellie View Post
I have no idea what you mean by bias. A finding that "the defendant did not commit the crime" and "there is insufficient evidence to prove that the defendant committed the crime beyond a reasonable doubt" are indeed fundamentally different.



I made the point that the issue isn't really paragraph 1 and paragraph 2. It's whether Italian Law distinguishes between an acquittal on the basis that the defendant did not commit the crime, the crime does not exist, and there is insufficient evidence to prove beyond a reasonable doubt that the crime exists and the defendant committed it. The last is the one you left out above. Hellmann gives the first two as reason for his acquittals on most charges. I've provide solid evidence that such a distinction is made. What 'favorable' means is that different forms of acquittal can be ranked. The ranking is given in the 1st citation I provided.


I already have. PDF files are searchable. Pick a less common word in the quotes i provided and search for it.
By finding, do you mean a statement in the body of the motivation report or one of the required formulas for acquittal that is required, in the case of a judgment of acquittal, to be included in the operative part of the judgment - the final section of a motivation report headed "For these reasons" or PQM (called in Italian legal texts the "dispositivo" = short form verdict)?

Previously, you emphasized quite strongly that the issue was the differences in wording of paragraphs 1 and 2 of CPP Article 530. In the above you have moved the goal posts, pretending that the issue is a more general one. You are falsely stating that I have not included the concept of insufficient evidence in Italian law. That concept is one of the central provisions of paragraph 2, and has not been left out by me. Your argument's diversion and misrepresentation is a sad example of intellectual dishonesty.

As established by my previous citations from the website of the Italian law firm Brocardi (relevant part copied below)*, only the positive wording of the formula for acquittal is included in the "dispositivo", that is the PQM, including in the instance of an acquittal under CPP Article 530 paragraph 2. There is no restriction on a statement indicating insufficient evidence or other grounds, such as missing or contradictory evidence, within the main text of the motivation report.

* From CPP Article 530; footnote 1) was supplied by the Brocardi firm:

2. Il giudice pronuncia sentenza di assoluzione anche quando manca, è insufficiente o è contraddittoria la prova che il fatto sussiste, che l'imputato lo ha commesso, che il fatto costituisce reato o che il reato è stato commesso da persona imputabile (1).

1) L'impossibilità di giungere ad un accertamento della colpevolezza conduce alla pronuncia di una formula che corrisponde ad un accertamento positivo dell'innocenza: ciò discende dall'esigenza di annunciare la causa dell'assoluzione nel dispositivo, come prevede il comma 1.

2. The judge pronounces the judgment of acquittal also when it is missing, insufficient or contradictory, the proof that the fact exists, that the accused has committed it, that the fact constitutes a crime or that the crime was committed by an imputable person (1).

The inability to reach an ascertainment of guilt leads to the pronunciation of a formula that corresponds to a positive ascertainment of innocence: this derives from the need to announce the cause of the acquittal in the "dispositivo", as provided for in paragraph 1.


Source: https://www.brocardi.it/codice-di-pr...-i/art530.html
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Old 13th January 2020, 05:07 AM   #776
whoanellie
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Originally Posted by Numbers View Post

Previously, you emphasized quite strongly that the issue was the differences in wording of paragraphs 1 and 2 of CPP Article 530. In the above you have moved the goal posts, pretending that the issue is a more general one. You are falsely stating that I have not included the concept of insufficient evidence in Italian law. That concept is one of the central provisions of paragraph 2, and has not been left out by me. Your argument's diversion and misrepresentation is a sad example of intellectual dishonesty.
Yes, the discussion has focused on paragraphs 1 and 2 of 530. I don't know why Professors Pizzi and Marafioti don't discuss that section specifically, but they make the same points that I and others have made drawing from 530. That point being Italian law allows for verdicts of "did not commit the crime" and "insufficient evidence" and they are distinct. Perhaps there is additional clarifying language in the code that I am unaware of. I've made it clear that my position is "paragraph 1" = "did not commit the crime" and "paragraph 2" = "insufficient evidence". As I understand you, you've argued there is no distinction between "did not commit the crime" and "insufficient evidence" in Italian law. Yet, I've provided a law review article that does make the distinction and even uses the language "strongest" and "weakest" to rank the 5 different types of verdict. How do you square the paragraph I've quoted with your position.

It seems that when provided with strong evidence contradicting your position you resort to insults.

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Old 13th January 2020, 10:39 AM   #777
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Originally Posted by whoanellie View Post
Yes, the discussion has focused on paragraphs 1 and 2 of 530. I don't know why Professors Pizzi and Marafioti don't discuss that section specifically, but they make the same points that I and others have made drawing from 530. That point being Italian law allows for verdicts of "did not commit the crime" and "insufficient evidence" and they are distinct. Perhaps there is additional clarifying language in the code that I am unaware of. I've made it clear that my position is "paragraph 1" = "did not commit the crime" and "paragraph 2" = "insufficient evidence". As I understand you, you've argued there is no distinction between "did not commit the crime" and "insufficient evidence" in Italian law. Yet, I've provided a law review article that does make the distinction and even uses the language "strongest" and "weakest" to rank the 5 different types of verdict. How do you square the paragraph I've quoted with your position.

It seems that when provided with strong evidence contradicting your position you resort to insults.
Of course they are distinct. For me, that's not what's at issue.

Even Grinder, when that Italian lawyer got back to him, said that the **meaningful** difference between the two belongs to popular perception, rather than the law.

The question "which would you rather be acquitted with," is a meaningless question - theoretically it would be rare that **both** would be available to a judge, when weighing the overt-explicit details of discrete cases.

One fits one set of facts or factoids, the other fits a different set of facts or factoids.

There is NO precedent for a judge refusing to acquit using 530.1, but choosing to "lessen the acquittal" by "dropping down" to 530.2. The choice of the two is not to "send a message", it is to opt for the appropriate subsection that fits the case. There's no "dropping down", or "lessening the acquittal" in using 530.2 when held side by side with 530.1.

They are both acquittals. Full stop. The type of acquittal has only quantitative value in the popular mind. Full stop.
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Old 13th January 2020, 01:06 PM   #778
whoanellie
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Originally Posted by Bill Williams View Post
Of course they are distinct. For me, that's not what's at issue.

Even Grinder, when that Italian lawyer got back to him, said that the **meaningful** difference between the two belongs to popular perception, rather than the law.

The question "which would you rather be acquitted with," is a meaningless question - theoretically it would be rare that **both** would be available to a judge, when weighing the overt-explicit details of discrete cases.

One fits one set of facts or factoids, the other fits a different set of facts or factoids.

There is NO precedent for a judge refusing to acquit using 530.1, but choosing to "lessen the acquittal" by "dropping down" to 530.2. The choice of the two is not to "send a message", it is to opt for the appropriate subsection that fits the case. There's no "dropping down", or "lessening the acquittal" in using 530.2 when held side by side with 530.1.

They are both acquittals. Full stop. The type of acquittal has only quantitative value in the popular mind. Full stop.
BW,
I've certainly received pushback on the 1st highlight here on ISF.

The interesting thing that I learned from the citations I provided above is that a defendant can appeal an acquittal with the goal of achieving a more favorable or stronger grounds for the acquittal. That was news to me - or at least I don't remember ever having read that before. Based on that, it seems there is an understanding codified in Italian law that not all acquittals are equal. Whether any defendant who has been acquitted would find it worth their while to appeal that decision is another matter.

I'm not sure what you mean by the 2nd highlighted section.
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Old 13th January 2020, 02:13 PM   #779
Bill Williams
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If there is one thing that I like about Numbers, it is his precision of language. I'm going to try to get in touch with my inner-Numbers, in order to try to be clearer.

Originally Posted by whoanellie View Post
The interesting thing that I learned from the citations I provided above is that a defendant can appeal an acquittal with the goal of achieving a more favorable or stronger grounds for the acquittal. That was news to me - or at least I don't remember ever having read that before.
Why on earth would anyone wish to appeal an acquittal? An acquittal is an acquittal is an acquittal. In Italian law - hybrid, mixture of Adversarial and Inquisatorial - there may be some lingering notion from the Inquisatorial system that one's honour is besmirched in the public mind by one of the methods of acquittal, when no such inference is ever drawn in the legal realm....

..... but imagine this. one appeals their acquittal and the new judge convicts! Why would one risk that? Even if a minimal risk?

Originally Posted by whoanellie View Post
Based on that, it seems there is an understanding codified in Italian law that not all acquittals are equal. Whether any defendant who has been acquitted would find it worth their while to appeal that decision is another matter.
Channeling my inner-Numbers.....

...... the use of the word "equal" is somewhat misleading. The way to avoid applying quantitative assumptions about things that may, in fact, not be equal - but still equivalent - is to refer to some aspects of Italian codified law being distinct, and avoid the use of the misleading word "unequal" in a quantitative sense.

Unless you want to say that they may not be equal, but still equivalent, one is not "more" than the other just different in some real way. "More what?" you may ask? Answer - more anything.

Because what is really real is that while sub-sections of Section 530 may indeed apply to distinct situations, that does not mean that they are unequal in the sense of leading to different outcomes. Meaning, "distinct" is a better word than "equal".

I can only repeat what I'd pressed Grinder on...... name one subsequent thing, in law, that is different following a 530.1 acquittal than a 530.2 acquittal. There isn't anything, save for a lingering sense amongst some in the public that one is better than the other. Even those people cannot say what it is - practically - that is better or worse. All the legal rememdies/conclusions are the same. It's just that some choose to feel differently about it, as if this is about feelings - so that they can complain or do what the guilters do - skew things unrecognizably.

Originally Posted by whoanellie View Post
I'm not sure what you mean by the 2nd highlighted section.
I can only repeat what is written after the highlighted section. No judge starts with 530.1 as the best possible acquittal available and says, "No, I cannot give the best possible acquittal possible, so I'll scale back to 530.2 to signal that it is a lesser acquittal."

That's not the way it works. At the risk of seeming to be unfairly argumentative, I believe I've explained that adequately in the stuff written after the 2nd highlighted part. If not, I don't know what else to say, other than to draw this out needlessly!!!!
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Old 13th January 2020, 03:39 PM   #780
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Originally Posted by Bill Williams View Post
If there is one thing that I like about Numbers, it is his precision of language. I'm going to try to get in touch with my inner-Numbers, in order to try to be clearer.


Why on earth would anyone wish to appeal an acquittal? An acquittal is an acquittal is an acquittal. In Italian law - hybrid, mixture of Adversarial and Inquisatorial - there may be some lingering notion from the Inquisatorial system that one's honour is besmirched in the public mind by one of the methods of acquittal, when no such inference is ever drawn in the legal realm....

..... but imagine this. one appeals their acquittal and the new judge convicts! Why would one risk that? Even if a minimal risk?


Channeling my inner-Numbers.....

...... the use of the word "equal" is somewhat misleading. The way to avoid applying quantitative assumptions about things that may, in fact, not be equal - but still equivalent - is to refer to some aspects of Italian codified law being distinct, and avoid the use of the misleading word "unequal" in a quantitative sense.

Unless you want to say that they may not be equal, but still equivalent, one is not "more" than the other just different in some real way. "More what?" you may ask? Answer - more anything.

Because what is really real is that while sub-sections of Section 530 may indeed apply to distinct situations, that does not mean that they are unequal in the sense of leading to different outcomes. Meaning, "distinct" is a better word than "equal".

I can only repeat what I'd pressed Grinder on...... name one subsequent thing, in law, that is different following a 530.1 acquittal than a 530.2 acquittal. There isn't anything, save for a lingering sense amongst some in the public that one is better than the other. Even those people cannot say what it is - practically - that is better or worse. All the legal rememdies/conclusions are the same. It's just that some choose to feel differently about it, as if this is about feelings - so that they can complain or do what the guilters do - skew things unrecognizably.


I can only repeat what is written after the highlighted section. No judge starts with 530.1 as the best possible acquittal available and says, "No, I cannot give the best possible acquittal possible, so I'll scale back to 530.2 to signal that it is a lesser acquittal."

That's not the way it works. At the risk of seeming to be unfairly argumentative, I believe I've explained that adequately in the stuff written after the 2nd highlighted part. If not, I don't know what else to say, other than to draw this out needlessly!!!!
1) According to the 2nd citation above, a defendant who is acquitted can appeal to seek a more favorable acquittal. I agree with you, from my American perspective, I don't understand why a defendant who was acquitted would appeal their acquittal but that possibility tells me that in Italian law there is a sense that different acquittals are more or less favorable (or stronger - weaker) for a defendant. The law is that an acquitted defendant who appeals cannot have the verdict changed to a less favorable acquittal. I would assume that if an acquitted defendant appeals, the verdict also cannot be changed to guilty. The citations I provided use the words "strongest", "weakest", "favorable". Those words mean something. I am not able to just ignore them in my attempts, feeble though they may be, to understand Italian law. If we are going to be precise about language, how can different verdicts be stronger or weaker or more favorable according to legal experts but still "equal"? How can the law in Italy be that a defendant can appeal their acquittal and be guaranteed not to get a less favorable outcome unless different acquittals are considered to be more or less favorable under Italian law? Please explain this to me.

2) I know there has been a lot of discussion about what was in the various motivation reports. I've gone back and looked at Hellman and Marasca. While Hellman acquits because the defendants did not commit the act or the crime did not occur (I take this to be 530.1), while Marasca specifically mentions 530.2

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Old 13th January 2020, 04:02 PM   #781
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Originally Posted by whoanellie View Post
1) According to the 2nd citation above, a defendant who is acquitted can appeal to seek a more favorable acquittal. I agree with you, from my American perspective, I don't understand why a defendant who was acquitted would appeal their acquittal but that possibility tells me that in Italian law there is a sense that different acquittals are more or less favorable (or stronger - weaker) for a defendant. The law is that an acquitted defendant who appeals cannot have the verdict changed to a less favorable acquittal. I would assume that if an acquitted defendant appeals, the verdict also cannot be changed to guilty. The citations I provided use the words "strongest", "weakest", "favorable". Those words mean something. I am not able to just ignore them in my attempts, feeble though they may be, to understand Italian law. If we are going to be precise about language, how can different verdicts be stronger or weaker or more favorable according to legal experts but still "equal"? How can the law in Italy be that a defendant can appeal their acquittal and be guaranteed not to get a less favorable outcome unless different acquittals are considered to be more or less favorable under Italian law? Please explain this to me.

2) I know there has been a lot of discussion about what was in the various motivation reports. I've gone back and looked at Hellman and Marasca. While Hellman acquits because the defendants did not commit the act or the crime did not occur (I take this to be 530.1), while Marasca specifically mentions 530.2
I wonder whether this may impact on compensation for the period of imprisonment. You have Sollecito who was in jail for 4? years for no reason and was denied compensation. I wonder if a different reason for acquittal would have made any difference?
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Old 13th January 2020, 06:01 PM   #782
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Originally Posted by Planigale View Post
I wonder whether this may impact on compensation for the period of imprisonment. You have Sollecito who was in jail for 4? years for no reason and was denied compensation. I wonder if a different reason for acquittal would have made any difference?
They didn't even remotely cite the section under which Sollecito had been exonerated, in denying him compensation. They retried the case.
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Old 13th January 2020, 09:30 PM   #783
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Following up TruthCalls' idea (in his post #740 in this continuation) of how to present the data about the number of cases annulled from the CSC annual summary, I present this summary illustrating the results for the mean (average) of the data for the years 2008 - 2018.

Method

For each year (2008 - 2018), from the CSC data given in Table 4.5, I calculated:

the number of Admissible cases (AD) = the number of Total cases (TotC) – the number of Inadmissible (InC) cases

the percent of Admissible cases (AD_T %) = Admissible cases / Total cases * 100

the number of All Annulled cases (An) = the number of Annulled with Referral cases (Re) + the number of Annulled without Referral cases (No)

the percent of All Annulled (An_AD %) cases = All Annulled cases / Admissible cases * 100

the percent of Annulled with Referral (Re_An %) cases = Annulled with Referral cases / All Annulled cases * 100

the percent of Annulled without Referral (No_An %) cases = Annulled without Referral cases / All Annulled cases * 100

the means [that is, the averages] for the given range of years (2008 - 2018)

Here are the results for the averages (means). (Presenting the whole spreadsheet seems too messy for a post.)

TotC = 52312 cases
InC = 33744 cases
AD = 18568 cases

AD_T % = 35.6%

An = 9746 cases
Re = 5104 cases
No = 4642 cases

An_AD % = 52.4%

Re_An % = 52.9%

No_An % = 47.1%

To make these results clearer, consider what happens to the average 1000 case requests for appeal sent to the CSC. Only 356 (35.6%) of these cases will be found admissible; the remainder will not be heard, because the CSC initial review found that those requests did not satisfy the requirements of CPP Article 606.

Of the 356 admissible cases, 52.4% or 187 cases, will be annulled; that is, the CSC will annul (quash) the lower court judgment. The remaining 169 will be rejected – meaning that the appeal will be heard, but the CSC will decide to let the lower court judgment stand.

For the 187 cases that are annulled (lower court judgment is quashed on appeal), 52.9% or 99 cases, will be referred back to a lower court for retrial or otherwise conforming to the CSC judgment, as provided for in CPP Article 623. The remaining 47.1% or 88 cases will be annulled (quashed) without referral in accordance with CPP Article 620.

In conclusion, of the thousands of cases submitted to the CSC on request for appeal each year, on average only 35.6% pass on to an appeal hearing. On average, about 52% of those cases will be annulled – the lower court judgment will be quashed. Of the cases that are quashed, about 53% will be referred back to a lower court, while about 47% will be quashed without referral.

Thus, contrary to the statements of some pro-guilt posters, annulment of appealed verdicts without referral is not uncommon among the cases that actually are admissible before the CSC.

And each year, the CSC finds many more cases to be inadmissible than admissible; only about 35.6% are likely to be admissible, on average, based on 2008 – 2018 CSC data. Contrary to the statements of some posters, appeals are not automatic in Italy, but must be filed by the appellant within a legally-set time limit, and may be declared inadmissible and not heard, according to law, at the CSC.

Source: http://www.cortedicassazione.it/cass...istico2018.pdf

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Old 14th January 2020, 12:11 AM   #784
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Originally Posted by Numbers View Post
Bill, thanks for providing your excellent post.

I want to call attention to your point about many of us who have misunderstood Italian law or process, at least before we gained some knowledge of that system which has some features unlike those in the US, the UK, or other countries having a legal system with roots in the English common law system.

While I believe that there were PIP who honestly misunderstood features of the Italian system, there are also PGP who either misunderstand or, as part of their agenda, choose to misrepresent features of that system.

Take, for example, the frequently related PGP claim that there in automatic appeal to Supreme Court of Cassation (CSC), or that the CSC annulling a case without referral, as the Marasca CSC panel did in the Knox - Sollecito case, is unusual.

The CSC publishes statistics online each year on its web site, updated to the previous year. The 2019 report* thus covers cases for the years 2008 through 2018.

In "Tab.4.5: Procedimenti definiti: classificazione per esito" = Table 4.5: Defined procedures: classification by outcome, the following information is shown:

For 2018, there was a total of 57,177 cases where an appeal was directed to the CSC.

The majority of cases, 40,082, were declared "Inammissibilità" = inadmissible and thus denied any appeal hearing. Another 6092 cases were apparently admissible but "Rigetto" = rejected.

Of the cases ruled admissible, the number of cases "Annullamento senza rinvio" = annulled without referral was 4971, or 8.7% of the total, which was nearly equal to the number of cases "Annullamento con rinvio" = annulled with referral, which was 5081, or 8.9% of the total.

The year 2015 is of particular interest since in that year the CSC delivered the final acquittal of the Knox - Sollecito case in an annulment without referral of the Nencini appeal court verdict.

For 2015, there was a total of 51,509 cases where an appeal was directed to the CSC.

The majority of cases, 33,071, were declared "Inammissibilità" = inadmissible and thus denied any appeal hearing. Another 7389 cases were apparently admissible but "Rigetto" = rejected. (Rejected means that the CSC did not agree with the arguments of the appeal, even if it was admissible. If the case is inadmissible or rejected without annulment, the appealed lower court judgment becomes final, IIUC.)

Of the cases ruled admissible, the number of cases "Annullamento senza rinvio" = annulled without referral was 4530, or 8.8% of the total, and was only slightly less than the number of cases "Annullamento con rinvio" = annulled with referral which was 5383, or 10.5% of the total.

Thus, the claim by some PGP that annulment without referral is rare or essentially unique to the Knox - Sollecito case and a few others is a false claim, generated apparently without any research into actual CSC case data. The false claim was most likely fabricated to cast unwarranted aspersions on the Marasca CSC panel judgment.**

On another point, and here I am being picky, of the 4 paragraphs in CPP Article 530, only the first three actually define "acquittal" under Italian law. The fourth paragraph allows for the detention even after acquittal of certain accused if justified according to other legal measures. (I have not researched the exact meaning - it may apply to those who are acquitted because they are not responsible due to "lack of mental capacity" or mental illness). Otherwise, the acquitted or dismissed person is released immediately from detention (unless detained for some other reason) in accordance with CPP Article 532, as was ordered by the Hellmann appeal court in its motivation report (without referencing the specific CPP article, illustrating again that such specific reference is unneeded in Italian judicial practice).

* See: http://www.cortedicassazione.it/cass...istico2018.pdf

** Over the period 2008 - 2018, the number of cases annulled without referral is usually less than the number annulled with referral by several hundred up to one thousand, where the number of annulled with referral ranges from about 4.3 to 6.5 thousand. However, in 2016 and 2017, the number of cases annulled without referral was greater than the number annulled with referral by about 1.0 to 2.0 thousand, where the number annulled with referral in 2016 and 2017 was about 5.3 and 4.9 thousand, respectively.
Originally Posted by Bill Williams View Post
If there is one thing that I like about Numbers, it is his precision of language. I'm going to try to get in touch with my inner-Numbers, in order to try to be clearer.


Why on earth would anyone wish to appeal an acquittal? An acquittal is an acquittal is an acquittal. In Italian law - hybrid, mixture of Adversarial and Inquisatorial - there may be some lingering notion from the Inquisatorial system that one's honour is besmirched in the public mind by one of the methods of acquittal, when no such inference is ever drawn in the legal realm....

..... but imagine this. one appeals their acquittal and the new judge convicts! Why would one risk that? Even if a minimal risk?


Channeling my inner-Numbers.....

...... the use of the word "equal" is somewhat misleading. The way to avoid applying quantitative assumptions about things that may, in fact, not be equal - but still equivalent - is to refer to some aspects of Italian codified law being distinct, and avoid the use of the misleading word "unequal" in a quantitative sense.

Unless you want to say that they may not be equal, but still equivalent, one is not "more" than the other just different in some real way. "More what?" you may ask? Answer - more anything.

Because what is really real is that while sub-sections of Section 530 may indeed apply to distinct situations, that does not mean that they are unequal in the sense of leading to different outcomes. Meaning, "distinct" is a better word than "equal".

I can only repeat what I'd pressed Grinder on...... name one subsequent thing, in law, that is different following a 530.1 acquittal than a 530.2 acquittal. There isn't anything, save for a lingering sense amongst some in the public that one is better than the other. Even those people cannot say what it is - practically - that is better or worse. All the legal rememdies/conclusions are the same. It's just that some choose to feel differently about it, as if this is about feelings - so that they can complain or do what the guilters do - skew things unrecognizably.


I can only repeat what is written after the highlighted section. No judge starts with 530.1 as the best possible acquittal available and says, "No, I cannot give the best possible acquittal possible, so I'll scale back to 530.2 to signal that it is a lesser acquittal."

That's not the way it works. At the risk of seeming to be unfairly argumentative, I believe I've explained that adequately in the stuff written after the 2nd highlighted part. If not, I don't know what else to say, other than to draw this out needlessly!!!!
Bill, there has been, I am confident, some mix-up (confusion) in the presentation of this. The mix-up goes to the source material that whoanellie used, a 2010 research report on Italian criminal procedure by legal analysts directed to the law library of Congress. Unfortunately, that report contains one or more confusions with respect to the topic of appeals.

A short answer, though, is that in Italy the prosecutor is the party that appeals an acquittal (given by a first- or appeal- level court). The accused, in that case, may present a counter-appeal. Also, in a case with several charges, there may be acquittals on some and convictions on others.

But an accused who has been dismissed (meaning, the charges have been cleared) but not acquitted may seek an acquittal by appealing the judgment. Also, the law (CPP Art. 597, paragraph 3) is not actually stating that the accused is appealing the dismissal; the appeal may be on some other point. The law states that the judge may not lower the quality of the dismissal from that granted in the appealed judgment. However, the judge can redefine the crime in terms of changing the charges to more serious ones, but the judge can't then lower the quality of the dismissal.

Here's one relevant excerpt from the report, from page 6:

"Article 597 of the C.P.P. establishes restrictions in the case of an appeal filed by the accused."

The first confusion is that the report cites CPP Article 597 as though it only applies to the accused. In fact, that article concerns the cognisance (although "extent of authorities" might be a better term) of the appeal court judge, and in fact discusses the judge's authority under paragraph 2 when the appellant is the prosecutor, and under paragraph 3 when the appellant is only the accused.

What the report is referring to, then, under the excerpt above are the provisions of paragraph 3. However, the question is whether the wording of the report is accurate and precise enough to prevent confusion about the actual text of the law.

A second confusion relates to the translation.

The report statement in question is:

"(c) Acquit the accused for a reason less favorable than that mentioned in the appealed decision;"

In the translation by Gialuz et al., the text of that paragraph states "In cases where the appellant is only the accused, the judge shall neither impose a more serious penalty in terms of type, length or amount, nor apply a more serious {severe} security measure, nor dismiss the accused for a less favorable reason than that referred to in the appealed judgment nor revoke any benefits. The aforementioned rules apply without prejudice to the right to assign a more serious {severe} legal definition to the criminal act...."

The Italian text of CPP Article 597 paragraph 3 states:

3. Quando appellante è il solo imputato, il giudice non può irrogare una pena più grave per specie o quantità, applicare una misura di sicurezza nuova o più grave, prosciogliere l'imputato per una causa meno favorevole di quella enunciata nella sentenza appellata né revocare benefici, salva la facoltà, entro i limiti indicati nel comma 1, di dare al fatto una definizione giuridica più grave, purché non venga superata la competenza del giudice di primo grado.*

Thus, a source of confusion is the appropriate translation of the Italian word "prosciogliere" which the report translates as "acquit" but Gialuz et al. translates as "dismiss". I have encountered this word before and the problems of translating it. According to Collins Reverso, this word can translate to "dismiss", "clear [of charges]", "exonerate", or "acquit". A noun form of this word occurs in the CCP itself, as part of the heading "Sentenza di proscioglimento" for the section that includes 3 different kinds of dismissal: CPP Art. 529, prosecution should not have been started or continued; CPP Art. 530, acquittal; and CPP 531, the charge is extinguished because of the statute of limitations. When I put "prosciogliere l'imputato" into Collins Reverso, the first meaning is "dismiss the case". Thus, I believe firmly that the appropriate legal translation of "prosciogliere" in this context is "dismiss".

As another appeal to the authority of people who actually do legal work in Italy - they are professors of criminal procedure and a professor of translation - the Gialuz et al. book has a glossary of English translations of Italian legal terms. Their translation of "proscioglimento" is "dismissal".

The meaning of the clause "the judge shall {not} dismiss the accused {the case} for a less favorable reason than that referred to in the appealed judgment" would then mean, if, for example, the judgment grants an acquittal, the judge may not substitute an extinguishment of the charges because of the statute of limitations. Nor, if the judgment grants an acquittal for the reason "the accused did not commit the act" (for example), the judge cannot substitute "the accused was not imputable {because of diminished mental capacity}"; the "not imputable" reason may have a risk of responsibility for civil claims that is not present for the other four reasons, under CPP Art. 652.

It's unfortunate that the questionable translation of the report has given rise to a misunderstanding about aquittals under Italian law.

* Source: https://www.brocardi.it/codice-di-pr...ii/art597.html

Last edited by Numbers; 14th January 2020 at 12:36 AM.
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Old 14th January 2020, 07:35 AM   #785
Numbers
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Originally Posted by Bill Williams View Post
They didn't even remotely cite the section under which Sollecito had been exonerated, in denying him compensation. They retried the case.
Should this state:

They retried the beginning of the case. They arbitrarily decided that Sollecito had intentionally (or by gross negligence) mislead the authorities by his misstatements during the Nov. 5/6 interrogation - when contrary to law he had not been warned that he was a suspect and the police had not read the defense rights to him - and was thus fully responsible for his own wrongful (unfair) detention.

Italian law on compensation for unfair detention is in CPP Articles 314 and 315. CPP Article 314, paragraph 1, states:

Whoever is dismissed by a final judgment because the criminal act did not occur, or they did not commit the act, or the act does not constitute an offense or it is not deemed an offense by law, is entitled to equitable compensation for the precautionary detention he served, if he did not cause or contributed to cause it intentionally or by gross negligence. *

Paragraph 2 states:

The person who was dismissed for any cause whatsoever or the convict who served precautionary detention during the proceedings is entitled to the same right, if it is ascertained, by final decision, that the decision ordering the measure was issued or maintained although the conditions or applicability provided for in Articles 273 and 280 were not met.*

Note:

Article 273, paragraph 1 states: No one may be subjected to precautionary measures unless there are serious indications of guilt.*

Article 280 provides that certain precautionary measures can only be applied if the case under prosecution is one where the penalty for the crime is life imprisonment or a maximum term of imprisonment greater than three years.

Note also that paragraph 1 of CPP Article 314 lists some, but not all, of the formulas found in CPP Article 530 for acquittal. For example, acquittal for the accused not be imputable (not having mental capacity) is not listed in Article 314.

Here is the Italian text for CPP Article 314, paragraphs 1 and 2**:

1. Chi è stato prosciolto con sentenza irrevocabile [648] perché il fatto non sussiste, per non aver commesso il fatto, perché il fatto non costituisce reato o non è previsto dalla legge come reato, ha diritto a un'equa riparazione per la custodia cautelare subita, qualora non vi abbia dato o concorso a darvi causa per dolo o colpa grave.

2. Lo stesso diritto spetta al prosciolto per qualsiasi causa o al condannato che nel corso del processo sia stato sottoposto a custodia cautelare, quando con decisione irrevocabile risulti accertato che il provvedimento che ha disposto la misura è stato emesso o mantenuto senza che sussistessero le condizioni di applicabilità previste dagli articoli 273 e 280.

Note: Use in the Italian of "prosciolto", which, according to Gialuz et al., means to "dismiss" a case or an accused in a general sense. One specific type of dismissal is acquittal, which is governed by CPP Article 530.

Note also, according to the Brocardi website and Gialuz et al., the Italian Constitutional Court has extended provisions of Article 314 in certain cases such as mistaken enforcement injunctions.

* Source: Gialuz, Luparia, and Scarpa, eds., The Italian Code of Criminal Procedure

** Source: https://www.brocardi.it/codice-di-pr...ii/art314.html

Last edited by Numbers; 14th January 2020 at 07:36 AM.
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Old 14th January 2020, 08:16 AM   #786
whoanellie
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Originally Posted by Numbers View Post
Bill, there has been, I am confident, some mix-up (confusion) in the presentation of this. The mix-up goes to the source material that whoanellie used, a 2010 research report on Italian criminal procedure by legal analysts directed to the law library of Congress. Unfortunately, that report contains one or more confusions with respect to the topic of appeals.

A short answer, though, is that in Italy the prosecutor is the party that appeals an acquittal (given by a first- or appeal- level court). The accused, in that case, may present a counter-appeal. Also, in a case with several charges, there may be acquittals on some and convictions on others.

But an accused who has been dismissed (meaning, the charges have been cleared) but not acquitted may seek an acquittal by appealing the judgment. Also, the law (CPP Art. 597, paragraph 3) is not actually stating that the accused is appealing the dismissal; the appeal may be on some other point. The law states that the judge may not lower the quality of the dismissal from that granted in the appealed judgment. However, the judge can redefine the crime in terms of changing the charges to more serious ones, but the judge can't then lower the quality of the dismissal.

Here's one relevant excerpt from the report, from page 6:

"Article 597 of the C.P.P. establishes restrictions in the case of an appeal filed by the accused."

The first confusion is that the report cites CPP Article 597 as though it only applies to the accused. [1] In fact, that article concerns the cognisance (although "extent of authorities" might be a better term) of the appeal court judge, and in fact discusses the judge's authority under paragraph 2 when the appellant is the prosecutor, and under paragraph 3 when the appellant is only the accused.

What the report is referring to, then, under the excerpt above are the provisions of paragraph 3. However, the question is whether the wording of the report is accurate and precise enough to prevent confusion about the actual text of the law.

A second confusion relates to the translation.

The report statement in question is:

"(c) Acquit the accused for a reason less favorable than that mentioned in the appealed decision;"

In the translation by Gialuz et al., the text of that paragraph states "In cases where the appellant is only the accused , the judge shall neither impose a more serious penalty in terms of type, length or amount, nor apply a more serious {severe} security measure, nor dismiss the accused for a less favorable reason than that referred to in the appealed judgment nor revoke any benefits. The aforementioned rules apply without prejudice to the right to assign a more serious {severe} legal definition to the criminal act...."

The Italian text of CPP Article 597 paragraph 3 states:

3. Quando appellante è il solo imputato, il giudice non può irrogare una pena più grave per specie o quantità, applicare una misura di sicurezza nuova o più grave, prosciogliere l'imputato per una causa meno favorevole di quella enunciata nella sentenza appellata né revocare benefici, salva la facoltà, entro i limiti indicati nel comma 1, di dare al fatto una definizione giuridica più grave, purché non venga superata la competenza del giudice di primo grado.*

Thus, a source of confusion is the appropriate translation of the Italian word "prosciogliere" which the report translates as "acquit" but Gialuz et al. translates as "dismiss". I have encountered this word before and the problems of translating it. According to Collins Reverso, this word can translate to "dismiss", "clear [of charges]", "exonerate", or "acquit". A noun form of this word occurs in the CCP itself, as part of the heading "Sentenza di proscioglimento" for the section that includes 3 different kinds of dismissal: CPP Art. 529, prosecution should not have been started or continued; CPP Art. 530, acquittal; and CPP 531, the charge is extinguished because of the statute of limitations. When I put "prosciogliere l'imputato" into Collins Reverso, the first meaning is "dismiss the case". Thus, I believe firmly that the appropriate legal translation of "prosciogliere" in this context is "dismiss". [2]

As another appeal to the authority of people who actually do legal work in Italy - they are professors of criminal procedure and a professor of translation - the Gialuz et al. book has a glossary of English translations of Italian legal terms. Their translation of "proscioglimento" is "dismissal".

The meaning of the clause "the judge shall {not} dismiss the accused {the case} for a less favorable reason than that referred to in the appealed judgment" would then mean, if, for example, the judgment grants an acquittal, the judge may not substitute an extinguishment of the charges because of the statute of limitations. Nor, if the judgment grants an acquittal for the reason "the accused did not commit the act" (for example), the judge cannot substitute "the accused was not imputable {because of diminished mental capacity}"; the "not imputable" reason may have a risk of responsibility for civil claims that is not present for the other four reasons, under CPP Art. 652. [3]

It's unfortunate that the questionable translation of the report has given rise to a misunderstanding about aquittals under Italian law.

* Source: https://www.brocardi.it/codice-di-pr...ii/art597.html
The phrase "can't see the forest for the trees" is relevant here. I don't know if the hyperfocus on the precise translation of 'prosciogliere' is a diversionary tactic or you are simply missing the point. I know I've not been as clear as I could be in making my arguments.

There are actually two separate issues in play.

The first is whether Italian law distinguishes between an acquittal based on the judgement that 1) no crime was committed, 2) the defendant did not commit the crime, and 3) there is insufficient evidence to convict a defendant. My undestanding, Numbers, is that you have steadfastly maintained that Italian law does not distinguish between 1 and 2 versus 3. The citation from Professors Pizzi and Marafioti tells me that Italian law does make that distinction. Who am I to believe? Pizzi is a law professor at the University of Colorado who coincidentally was a visiting professor at the University of Perugia. Marafioti was a law professor in Rome. Based on Pizzi and Marafioti, my understanding is that a defendant in Italy can be acquitted for the reason that act did not occur, the defendant did not commit the act, or on the basis of insufficient evidence (or other reasons not relevant here). My reading of Hellmann is that his acquittal of AK and RS for murder was based on the defendants not having committed the act. My reading of Marasca is the that the final, final judgement was based on insufficient evidence.

The second issue is raised by this quote from Bill Williams:

'They are both acquittals. Full stop. The type of acquittal has only quantitative value in the popular mind. Full stop.'

and this quote from Numbers:

'Anyone who wishes to claim that there is a legal or perceptual difference between paragraph 2 and paragraph 1 of CPP Article 530 should produce evidence from actual Italian legal cases (for a legal difference) or surveys of opinion or media (for a perception difference). Otherwise, such claims may be simply parroting fabricated or ill-informed claims.....'

both of which are directly above. Professors Pizzi and Marafioti list 5 different 'types' or 'forms' of acquittal ranking them from 'strongest' to 'weakest' noting that a 'defendant has the right to appeal an acquittal to seek a stronger form of acquittal'. My conclusion is that the statement 'The type of acquittal has only quantitative value in the popular mind' is incorrect based on my reading of Pizzi and Marafioti. Taking Pizzi and Marafioti at face value, the fact that a defendant can appeal to see a 'stronger' form acquittal must mean that Italian law provides for some hierarchical ranking of the different 'types' of acquittal which include the defendant did not commit the act at #2 and insufficient evidence at #3. Seriously, is there any other way to read that paragraph??????

Numbers, you focus on 'dismiss' versus 'acquit' in passage from the Law Library of Congress referring to the Gialuz translation but miss these highly relevant words that are in the Gialuz translation, 'less favorable reason'. What does 'Gialuz' mean by 'less favorable reason'/ My inference is that 'reason' refers to the list of five 'types' or 'forms' given by Pizzi and Marafioti. My inference is that 'less favorable' refers to the ranking given by Pizzi and Marafioti. Does anyone dispute that? While I've not provide evidence from the Italian media or Italian legal cases, I have provide strong evidence that I am not parroting fabricated or ill-informed claims.

Some additional notes on your post

[1] I did not read the Law Library of Congress report to mean section 597 applies only to the accused.
[2] Pizzi and Marafioti also use 'acquit'
[3] The meaning of the clause is clear but your example is helpful. Isn't it also true that if an dismissal/acquittal for the reason "the accused did not commit the act" (for example), the judge cannot substitute "insufficent evidence that the accused committed the act"? It's not clear why a defendant who received a judgement of 'did not commit the act' would appeal. My reading of Pizzi and Marafioti is that the only goal could be to receive a judgement of 'the act did not occur'. I can, however, imagine that an upgrade from insufficient evidence that the defendant committed the act to the defendant did not commit the act might be desirable.

Remember that Pizzi and Marafioti warned us that, in this respect, Italian law is 'counter-intuitive'.

Last edited by whoanellie; 14th January 2020 at 08:18 AM.
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Old 14th January 2020, 08:19 AM   #787
Numbers
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Two points about this case:

1. It involves differences in language - Italian compared to English for Amanda Knox and the police interrogators, for example, but also Italian compared to whatever the native language of a poster or other person observing the case.

2. It involves differences in law - Italian law compared to whatever national law an observer knows or believes they know.

Take words such as "acquit" and "absolve" in English. Most native speakers would see them as different.

However, both "acquit" (in the sense of a dismissal of court charges) and "absolve" translate to "assolvere" in Italian, with highest frequency of documented public use, according to Google translate.

In Collins Reverso, the same translation relationship is true.

Note that there is another meaning for "acquit" in English, meaning to act or conduct oneself or perform in a certain way, and that will translate to "compartare" in Italian, according to Google translate.

It's not untrue that "acquit", "absolve", "innocent", "not guilty", "exonerate", "dismiss" and a few other words are near synonyms, depending on the language and the context.

Last edited by Numbers; 14th January 2020 at 08:22 AM.
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Old 14th January 2020, 09:02 AM   #788
Numbers
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Originally Posted by whoanellie View Post
The phrase "can't see the forest for the trees" is relevant here. I don't know if the hyperfocus on the precise translation of 'prosciogliere' is a diversionary tactic or you are simply missing the point. I know I've not been as clear as I could be in making my arguments.

There are actually two separate issues in play.

The first is whether Italian law distinguishes between an acquittal based on the judgement that 1) no crime was committed, 2) the defendant did not commit the crime, and 3) there is insufficient evidence to convict a defendant. My undestanding, Numbers, is that you have steadfastly maintained that Italian law does not distinguish between 1 and 2 versus 3. The citation from Professors Pizzi and Marafioti tells me that Italian law does make that distinction. Who am I to believe? Pizzi is a law professor at the University of Colorado who coincidentally was a visiting professor at the University of Perugia. Marafioti was a law professor in Rome. Based on Pizzi and Marafioti, my understanding is that a defendant in Italy can be acquitted for the reason that act did not occur, the defendant did not commit the act, or on the basis of insufficient evidence (or other reasons not relevant here). My reading of Hellmann is that his acquittal of AK and RS for murder was based on the defendants not having committed the act. My reading of Marasca is the that the final, final judgement was based on insufficient evidence.

The second issue is raised by this quote from Bill Williams:

'They are both acquittals. Full stop. The type of acquittal has only quantitative value in the popular mind. Full stop.'

and this quote from Numbers:

'Anyone who wishes to claim that there is a legal or perceptual difference between paragraph 2 and paragraph 1 of CPP Article 530 should produce evidence from actual Italian legal cases (for a legal difference) or surveys of opinion or media (for a perception difference). Otherwise, such claims may be simply parroting fabricated or ill-informed claims.....'

both of which are directly above. Professors Pizzi and Marafioti list 5 different 'types' or 'forms' of acquittal ranking them from 'strongest' to 'weakest' noting that a 'defendant has the right to appeal an acquittal to seek a stronger form of acquittal'. My conclusion is that the statement 'The type of acquittal has only quantitative value in the popular mind' is incorrect based on my reading of Pizzi and Marafioti. Taking Pizzi and Marafioti at face value, the fact that a defendant can appeal to see a 'stronger' form acquittal must mean that Italian law provides for some hierarchical ranking of the different 'types' of acquittal which include the defendant did not commit the act at #2 and insufficient evidence at #3. Seriously, is there any other way to read that paragraph??????

Numbers, you focus on 'dismiss' versus 'acquit' in passage from the Law Library of Congress referring to the Gialuz translation but miss these highly relevant words that are in the Gialuz translation, 'less favorable reason'. What does 'Gialuz' mean by 'less favorable reason'/ My inference is that 'reason' refers to the list of five 'types' or 'forms' given by Pizzi and Marafioti. My inference is that 'less favorable' refers to the ranking given by Pizzi and Marafioti. Does anyone dispute that? While I've not provide evidence from the Italian media or Italian legal cases, I have provide strong evidence that I am not parroting fabricated or ill-informed claims.

Some additional notes on your post

[1] I did not read the Law Library of Congress report to mean section 597 applies only to the accused.
[2] Pizzi and Marafioti also use 'acquit'
[3] The meaning of the clause is clear but your example is helpful. Isn't it also true that if an dismissal/acquittal for the reason "the accused did not commit the act" (for example), the judge cannot substitute "insufficent evidence that the accused committed the act"? It's not clear why a defendant who received a judgement of 'did not commit the act' would appeal. My reading of Pizzi and Marafioti is that the only goal could be to receive a judgement of 'the act did not occur'. I can, however, imagine that an upgrade from insufficient evidence that the defendant committed the act to the defendant did not commit the act might be desirable.

Remember that Pizzi and Marafioti warned us that, in this respect, Italian law is 'counter-intuitive'.
I think that the shortest response to your post is that it is an example of your continually misrepresenting my position while you have changed your position in you arguments.

Your posts seem to be confusing a discussion of the meaning of Article 530 paragraph 1 compared to 2 with the meaning of the acquittal formulas, which are common to both paragraphs; one formula is also contained in Article 3.

Your posts don't seem to recognize the importance of context is the use of legal language, as used by Italian lawyers, judges, and parliamentarians in formulating their laws including their legal codes.

You began this absurd discussion by claiming there is a difference between Article 530 paragraph 2 and paragraph 1 with respect to the quality of acquittal. I disagreed with that position.

Now you seem to have abandoned your former position, in favor of my previous and continued position, which is that it is the acquittal formulas of Article 530, which are listed in paragraphs 1 and 3, that are important in the context of Italian law. Those formulas are repeated in other CPP Articles, as I have pointed out in my posts on this ISF forum years ago and continue to post and maintain. However, you are now apparently claiming that my position is the formulas are not the relevant legal provisions.

You also seem to ignore the reality of Italian legal professionals (lawyers, judges, and parliamentarians) making distinctions between "dismissal" or "dismiss" ("prosciogliere" is the verb form) and "acquit" or "acquittal" ("assolvere" is the verb form).

Furthermore, your posts apparently compare the short-form verdict in Hellmann to the motivation report text (above the short-form verdict) in Marasca to conclude that these two acquittals were legally different. However, objectively, including being consistent in an apples-to-apples comparison, both short-form verdicts use (in substance) the same acquittal formula "the accused did not commit the act" for the acquittal on the murder/rape charges.

Even a superficial reading of the motivation report text, which gives the grounds for the verdict, shows that evidence was evaluated by both courts, and the evidence was found not to prove guilt beyond a reasonable doubt. In fact, Hellmann and Marasca both indicated that some critical evidence was contradictory, in that the Hellmann's court appointed DNA experts contradicted Stefanoni's alleged DNA evidence against Knox and Sollecito.

Under CPP Article 530, paragraph 1, the short-form verdict of a judgment of acquittal is required by law to show an acquittal formula, which must be one of those contained in Article 530. There is no such requirement on the grounds of the motivation report of the judgment.

Thus, your claim of a difference between Hellmann and Marasca in terms of Article 530 formulas is mistaken (at best). Hellmann never even cited Article 530 by number in the short-form verdict, but did cite the appropriate formula.

In Boninsegna's acquittal of Knox, in the short-form verdict, Article 530 was cited, with two different formulas, but no paragraph number of Article 530 was cited.

It is the citation of an acquittal formula in the short-form verdict that is required under Italian law, not the citation of Article 530 itself or a paragraph number from 530.

I'm not going to speculate why are posting in that manner, with mistaken or false claims.

I can only state that the method of discourse in your posts, such as your switching your argument position without any acknowledgement of that switch, in my opinion, indicates a kind of intellectual dishonesty.

Furthermore, your attribution to me of positions which misrepresent what I have stated are another indication, in my opinion, of a kind of intellectual dishonesty. I don't see a need to continue an argument or discussion that is corrupted by another poster's intellectual dishonesty.
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Old 14th January 2020, 09:10 AM   #789
Bill Williams
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Originally Posted by Numbers View Post
It's unfortunate that the questionable translation of the report has given rise to a misunderstanding about aquittals under Italian law.

* Source: https://www.brocardi.it/codice-di-pr...ii/art597.html
So to summarize - **if** I understand this at all.

This sounds like a process where some sort of lack of evidence causes the trial to stop well before it reaches the verdict stage. Similar to a defence lawyer moving that all charges be dismissed mid-trial, the judge grants it and everyone goes home.

For some defendants this might not be satisfactory given the leeches and monsters out there who fill the internet with conspiracy theories.

It sounds like in Italy, one has the right to upgrade this dismissal to an actual acquittal. It isn't "upgrading an acquittal to a better acquittal," it is upgrading a dismissal.

Have I got this?
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In a thread titled "Who Killed Meredith Kercher?", the answer is obvious. Rudy Guede and no one else.

Last edited by Bill Williams; 14th January 2020 at 09:50 AM.
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Old 14th January 2020, 09:19 AM   #790
Bill Williams
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Originally Posted by whoanellie View Post
Numbers, you focus on 'dismiss' versus 'acquit' in passage from the Law Library of Congress referring to the Gialuz translation but miss these highly relevant words that are in the Gialuz translation, 'less favorable reason'. What does 'Gialuz' mean by 'less favorable reason'/ My inference is that 'reason' refers to the list of five 'types' or 'forms' given by Pizzi and Marafioti. My inference is that 'less favorable' refers to the ranking given by Pizzi and Marafioti. Does anyone dispute that? While I've not provide evidence from the Italian media or Italian legal cases, I have provide strong evidence that I am not parroting fabricated or ill-informed claims.
I believe the inference is mistaken. I say this for perhaps the weakest reason possible.

There'd be more mention of it. There'd be more press coverage on the times it is used that way.

But then again, I don't know that. But this whole issue seems to have been solved.
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Old 14th January 2020, 10:09 AM   #791
Numbers
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Originally Posted by Bill Williams View Post
So to summarize - **if** I understand this at all.

This sounds like a process where some sort of lack of evidence causes the trial to stop well before it reaches the verdict stage. Similar to a defence lawyer moving that all charges be dismissed mid-trial, the judge grants it and everyone goes home.

For some defendants this might not be satisfactory given the leeches and monsters out there who fill the internet with conspiracy theories.

It sounds like in Italy, one has the right to upgrade this dismissal to an actual acquittal. It isn't "upgrading an acquittal to a better acquittal," it is upgrading a dismissal.

Have I got this?
Bill, I'm taking a short time to give a short answer.

Yes, one form of dismissal may be upgraded to a "higher" or "stronger" form of dismissal.

In the Marasca MR text, there's a reference to them not being able to make the extinction for carrying the knife an acquittal, IIRC because of not enough evidence. That suggestion is an indication of a potential for an upgrade.

But to be picky, both extinction and acquittal are dismissals. But acquittal is "stronger" because it may (depending on the formula implied by the grounds of the motivation report and wording required by Article 530.1 and .3) say the accused never did it or the facts of the crime did not occur, etc.

Recall that Mignini was dismissed for abuse of power etc. charges as a result of extinction (case time exceeding statute of limitations). That is not as strong, perceptually, as an acquittal. However, according to law, there's no practical difference (with possible exception of civil actions, but I would have to look that up - but has anyone sued him* yet for the MoF nonsense?).


*I am not sure whether, or to what degree, prosecutors have legal impunity from private lawsuits in Italy. Mignini was censored by the Superior Council of the Judiciary for depriving Sollecito of legal counsel without judicial authority, contrary to law, as I recall.

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Old 14th January 2020, 11:10 AM   #792
whoanellie
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Originally Posted by Numbers View Post
You began this absurd discussion by claiming there is a difference between Article 530 paragraph 2 and paragraph 1 with respect to the quality of acquittal. I disagreed with that position.
and what have I always said that difference was????? That paragraph 1 describes verdicts such as the accused did not commit the act while paragraph 2 describes verdicts such as there is insufficient evidence that the accused committed the act. I gather that you do in fact disagree with that position.
Originally Posted by Numbers View Post
Now you seem to have abandoned your former position, in favor of my previous and continued position, which is that it is the acquittal formulas of Article 530, which are listed in paragraphs 1 and 3, that are important in the context of Italian law. Those formulas are repeated in other CPP Articles, as I have pointed out in my posts on this ISF forum years ago and continue to post and maintain. However, you are now apparently claiming that my position is the formulas are not the relevant legal provisions.
I have neither abandoned my former position nor am I claiming anything about your position regarding the formulas. My position still is that Italian law allows for an acquittal based on the reason that the accused did not commit the act or that there is insufficient evidence that the accused committed the act or other reasons. Pizzi and Marafioti support that position without specifically referring to 530. There may be other relevant sections of Italian law they are drawing on.
Originally Posted by Numbers View Post
You also seem to ignore the reality of Italian legal professionals (lawyers, judges, and parliamentarians) making distinctions between "dismissal" or "dismiss" ("prosciogliere" is the verb form) and "acquit" or "acquittal" ("assolvere" is the verb form).
.....
Furthermore, your attribution to me of positions which misrepresent what I have stated are another indication, in my opinion, of a kind of intellectual dishonesty. I don't see a need to continue an argument or discussion that is corrupted by another poster's intellectual dishonesty.
I am sorry if I have misrepresented your position. I've stated here quite clearly that I don't have a clear understanding of your position. My failure to understand your position is due, at least in part, to your style of argument which I find to be both beligerent and highly ineffective. Rather than deal with the substance of the arguments against your position and clearly stating your own position, you accuse others of not understanding the words they are using and of not appreciating the fine points of language the way you do. In my opinion, you would be more effective if you focus on clearly stating your position while offering more substantive counter-arguments.
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Old 14th January 2020, 12:11 PM   #793
Bill Williams
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Originally Posted by Numbers View Post
Bill, I'm taking a short time to give a short answer.

Yes, one form of dismissal may be upgraded to a "higher" or "stronger" form of dismissal.

In the Marasca MR text, there's a reference to them not being able to make the extinction for carrying the knife an acquittal, IIRC because of not enough evidence. That suggestion is an indication of a potential for an upgrade.

But to be picky, both extinction and acquittal are dismissals. But acquittal is "stronger" because it may (depending on the formula implied by the grounds of the motivation report and wording required by Article 530.1 and .3) say the accused never did it or the facts of the crime did not occur, etc.

Recall that Mignini was dismissed for abuse of power etc. charges as a result of extinction (case time exceeding statute of limitations). That is not as strong, perceptually, as an acquittal. However, according to law, there's no practical difference (with possible exception of civil actions, but I would have to look that up - but has anyone sued him* yet for the MoF nonsense?).


*I am not sure whether, or to what degree, prosecutors have legal impunity from private lawsuits in Italy. Mignini was censored by the Superior Council of the Judiciary for depriving Sollecito of legal counsel without judicial authority, contrary to law, as I recall.
Numbers - your whole argument turns on the nuances of that word "perceptually", esp. when rendered in Italian and in an Italian legal context.
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Old 14th January 2020, 03:19 PM   #794
Numbers
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Originally Posted by whoanellie View Post
and what have I always said that difference was????? That paragraph 1 describes verdicts such as the accused did not commit the act while paragraph 2 describes verdicts such as there is insufficient evidence that the accused committed the act. I gather that you do in fact disagree with that position.

I have neither abandoned my former position nor am I claiming anything about your position regarding the formulas. My position still is that Italian law allows for an acquittal based on the reason that the accused did not commit the act or that there is insufficient evidence that the accused committed the act or other reasons. Pizzi and Marafioti support that position without specifically referring to 530. There may be other relevant sections of Italian law they are drawing on.

I am sorry if I have misrepresented your position. I've stated here quite clearly that I don't have a clear understanding of your position. My failure to understand your position is due, at least in part, to your style of argument which I find to be both beligerent and highly ineffective. Rather than deal with the substance of the arguments against your position and clearly stating your own position, you accuse others of not understanding the words they are using and of not appreciating the fine points of language the way you do. In my opinion, you would be more effective if you focus on clearly stating your position while offering more substantive counter-arguments.
Unfortunately, I find your criticisms of my style of argumentation to be very similar to my impressions of your style of argumentation. Also, you do not seem to me to explicitly present or acknowledge your changes in the claims of your argument.

Since I have repeatedly posted my arguments on CPP
Article 530, including in posts as far back as 2015 when Grinder questioned whether there was a legal or perceptual difference in acquittals under paragraph 2 compared to paragraph 1, and I have recently went over the Italian law - which is not my position, but the actual texts of the Italian law - I can only say I find your statements that you do not understand my position odd. I would ask that you read those posts thoroughly and bring up specific questions for those parts that you claim not to understand.

In your posts, you fail in cases I have observed to adequately present or explain the contents of your sources, and you accept them uncritically.

As an example, in terms of examining sources critically, let's consider the 1992 paper by Pizzi and Marafioti, which you have used to support your argument that there is a hierarchy of acquittals. In a previous post, I had stated I had looked at the paper quickly and had seen no reference to your point. In fact, I was looking for text relating to CPP Article 530, which you claimed had a difference in hierarchy (or something, I am not clear) between paragraphs 1 and 2, and I saw no reference at all in Pizzi to Article 530. I had asked you to present in a post, or provide a location within the source, to assist in finding your supporting information. If you provided it, I must apologize that I did not see it in your posts.

However, I have now had time to read through the relevant part of the Pizzi paper more thoroughly and I have found apparently what is the basis for your opinion about a hierarchy in acquittals.

First, I will cut and paste the Pizzi text, from near the bottom of page 15, here:

Quote:
The broad scope of appellate rights in Italy is exemplified by the right of a defendant to appeal even an acquittal. This counter-intuitive result stems from the fact that the Italian system provides for more than one type of acquittal. Judges can choose from a range of acquittals. Ranging from strongest to weakest, the forms of acquittal are findings as follows: 1) that no crime was committed; 2) that there was a crime, but the defendant did not commit it; 3) that the defendant is innocent of the crime, because evidence was insufficient to convict him; 4) that there was no crime, because the defendant had a justification for his action (such as self-defense or necessity); or 5) that it was not possible to decide the case due to a procedural fault. A defendant has the right to appeal an acquittal to seek a stronger form of acquittal.
Now I will offer some comments about the above statement by Pizzi. I hope you don't take them personally; they are meant objectively.

1. Pizzi and Marafioti wrote this article for the Yale Law Review in 1992. Italy has undergone consider changes in its legal system since that time. It is possible that the statement reflects the Italian legal system in 1992, after the initial reforms of 1988, and we know that the Italian legal system continued to change after 1992. For example, as I pointed out in previous posts, according to my 2014 Gialuz et al. reference, Italy had adopted changes to its codified laws to include the principle that an accused may be convicted only if proven guilty BARD in 2006 (in CPP Article 533), long after the Pizzi paper was published. And Knox and Sollecito were tried under Italian law as it was in 2007 - 2015, not as it was in 1992. In other posts, I have copied and pasted information from the Brocardi law firm website* (presumed current as of 2020) that states that "acquittal for insufficient evidence" had been abolished by a law that substituted "insufficient or contradictory proof [evidence] to absolute lack of proof [evidence] (date of the law not given in the source). Since, I far as I can tell from reading the 2014 CPP in English, there is no information or law in the current CPP that the acquittal formulas (some of which have clearly changed since 1992) have any hierarchy, I would suggest that the hierarchy presented by Pizzi is of historical interest only.

2. Pizzi and Marafioti document many of their statements with footnotes, providing citations to verify their information. That is a typical legal and academic method of presenting information. Oddly, their is no footnote or other citation for the Pizzi statement on the hierarchy of acquittals. Perhaps its merely an oversight, but it makes it impossible to verify the source of the information in Italian law (whether historical or current).

3. According to the brief biographical note, William Pizzi was professor of law at University of Colorado School of Law, and he was visiting professor at University of Perugia** Faculty of Law 1990 - 1991. This note suggests that he was not an Italian lawyer, and while his information shouldn't be impeached on that basis, I would suggest that the information provided by current lawyers, especially academics in procedural law, such as Gialuz and Luparia, should be considered highly relevant. In addition, it should be remembered that the real source document is the Italian Code of Criminal Procedure, written by the Italian parliament and its legal staff, in Italian.

4. The idea that judges choose from a range of acquittal formulas is correct, but the judge is required, under current Italian law, to choose the formula(s) that actually convey the cause of the acquittal. They are not some kind of negotiable slogans, but rather, for the short-form verdict, a very brief summary of the result of the evaluation of evidence as presented in the grounds of the judgment as documented in the motivation report text.

*La legge delega, all'art. 2, n. 11 prevedeva l'elencazione di diverse formule di proscioglimento o di assoluzione ed aboliva l'assoluzione per insufficienza di prove contemplata invece dall'abrogato codice, equiparando la prova insufficiente o contraddittoria alla mancanza assoluta di prova.

La norma in commento, riprendendo le direttive della legge delega, elenca le formule di assoluzione tradizionali, contraddistinte da natura tassativa.

The law, in art. 2, no. 11 provided for the list of different dismissal or acquittal formulas and abolished acquittal for insufficient evidence [proof] contemplated by the repealed code, equating insufficient or contradictory proof [evidence] to absolute lack of proof [evidence].

The rule in question, taking up the directives of the delegated law, lists the traditional acquittal formulas, characterized by a mandatory nature.

Note: Relevant translations of "prove" and "prova" are primarily "evidence" or "proof", respectively. However, each can be translated to either word.

** The favorite Italian town of all Knox - Sollecito case posters.

Last edited by Numbers; 14th January 2020 at 03:47 PM.
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Old 14th January 2020, 03:19 PM   #795
LondonJohn
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*sigh*

I think that all of this only goes to indicate that 530, as it's written currently and as it maps onto actual legislation currently, is woefully ambiguous, tautological, subject to interpretation (and misinterpretation), and probably subject to colloquial (ab)use by acquitting judges.

I think that the root problem of all of this is very probably because Italy failed properly to rewrite its code after its legislation and legal framework changed in the 1990s. Before that time, courts were inquisitorial and were charged with determining the full "judicial truth" of a crime - i.e. whether the accused had committed the crime, whether the accused had not committed the crime, or whether the court could not decide whether or not the accused had committed the crime. And I think that these latter two are the genesis of 530.1 and 530.2.

In, say, 1970, you'd have seen acquittals from Italian courts along the lines of (using vernacular, obv): "this court has heard all the evidence, and it has decided that you did not commit this crime; you are acquitted". And likewise, you'd have seen acquittals along the lines of "this court has heard all of the evidence, and it has cannot decide whether or not you have committed this crime; you are therefore acquitted".

And that, IMO, is precisely how we get to the present-day ambiguity, redundancy and sleight-of-hand around 530.1 and 530.2.

Lastly, I suppose if it helps with the debate, I'd be highly confident that - outside of Italy at least - no supranational legal polity (such as the ECHR or the EU or the UN) would treat any one "flavour" of acquittal in the Italian system any differently from any other. In fact, it's a surprise to me that the European bodies have not by now cleared up this nonsense in the Italian code (they've had over 20 years in which to have done so, after all...) - though on the other hand, maybe they've simply reasoned that so long as both result in legal acquittals, they don't really mind that Italy continues to fudge these "flavours"......
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Old 14th January 2020, 03:28 PM   #796
LondonJohn
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Originally Posted by Numbers View Post
Unfortunately, I find your criticisms of my style of argumentation to be very similar to my impressions of your style of argumentation. Also, you do not seem to me to explicitly present or acknowledge your changes in the claims of your argument.

In your posts, you fail in cases I have observed to adequately present or explain the contents of your sources, and you accept them uncritically.

As an example, in terms of examining sources critically, let's consider the 1992 paper by Pizzi and Marafioti, which you have used to support your argument that there is a hierarchy of acquittals. In a previous post, I had stated I had looked at the paper quickly and had seen no reference to your point. In fact, I was looking for text relating to CPP Article 530, which you claimed had a difference in hierarchy (or something, I am not clear) between paragraphs 1 and 2, and I saw no reference at all in Pizzi to Article 530. I had asked you to present in a post, or provide a location within the source, to assist in finding your supporting information. If you provided it, I must apologize that I did not see it in your posts.

However, I have now had time to read through the relevant part of the Pizzi paper more thoroughly and I have found apparently what is the basis for your opinion about a hierarchy in acquittals.

First, I will cut and paste the Pizzi text, from near the bottom of page 15, here:



Now I will offer some comments about the above statement by Pizzi. I hope you don't take them personally; they are meant objectively.

1. Pizzi and Marafioti wrote this article for the Yale Law Review in 1992. Italy has undergone consider changes in its legal system since that time. It is possible that the statement reflects the Italian legal system in 1992, after the initial reforms of 1988, and we know that the Italian legal system continued to change after 1992. For example, as I pointed out in previous posts, according to my 2014 Gialuz et al. reference, Italy had adopted changes to its codified laws to include the principle that an accused may be convicted only if proven guilty BARD in 2006 (in CPP Article 533), long after the Pizzi paper was published. And Knox and Sollecito were tried under Italian law as it was in 2007 - 2015, not as it was in 1992. In other posts, I have copied and pasted information from the Brocardi law firm website* (presumed current as of 2020) that states that "acquittal for insufficient evidence" had been abolished by a law that substituted "insufficient or contradictory proof [evidence] to absolute lack of proof [evidence] (date of the law not given in the source). Since, I far as I can tell from reading the 2014 CPP in English, there is no information or law in the current CPP that the acquittal formulas (some of which have clearly changed since 1992) have any hierarchy, I would suggest that the hierarchy presented by Pizzi is of historical interest only.

2. Pizzi and Marafioti document many of their statements with footnotes, providing citations to verify their information. That is a typical legal and academic method of presenting information. Oddly, their is no footnote or other citation for the Pizzi statement on the hierarchy of acquittals. Perhaps its merely an oversight, but it makes it impossible to verify the source of the information in Italian law (whether historical or current).

3. According to the brief biographical note, William Pizzi was professor of law at University of Colorado School of Law, and he was visiting professor at University of Perugia** Faculty of Law. This note suggests that he was not an Italian lawyer, and while his information shouldn't be impeached on that basis, I would suggest that the information provided by current lawyers, especially academics in procedural law, such as Gialuz and Luparia, should be considered highly relevant. In addition, it should be remembered that the real source document is the Italian Code of Criminal Procedure, written by the Italian parliament and its legal staff, in Italian.

4. The idea that judges choose from a range of acquittal formulas is correct, but the judge is required, under current Italian law, to choose the formula(s) that actually are the cause of the acquittal. They are not some kind of negotiable slogans, but rather, for the short-form verdict, a very brief summary of the result of the evaluation of evidence as presented in the grounds of the judgment as documented in the motivation report text.

*La legge delega, all'art. 2, n. 11 prevedeva l'elencazione di diverse formule di proscioglimento o di assoluzione ed aboliva l'assoluzione per insufficienza di prove contemplata invece dall'abrogato codice, equiparando la prova insufficiente o contraddittoria alla mancanza assoluta di prova.

La norma in commento, riprendendo le direttive della legge delega, elenca le formule di assoluzione tradizionali, contraddistinte da natura tassativa.

The law, in art. 2, no. 11 provided for the list of different dismissal or acquittal formulas and abolished acquittal for insufficient evidence [proof] contemplated by the repealed code, equating insufficient or contradictory proof [evidence] to absolute lack of proof [evidence].

The rule in question, taking up the directives of the delegated law, lists the traditional acquittal formulas, characterized by a mandatory nature.

Note: Relevant translations of "prove" and "prova" are primarily "evidence" or "proof", respectively. However, each can be translated to either word.

** The favorite Italian town of all Knox - Sollecito case posters.


YES. And that Pizzi/Marafioti article tends, IMO, to directly support my contention that the present-day 530.1 and 530.2 are the bastard offspring of the code in the times in which that paper was written: IMO the current mess is the combination of a) shoehorning the old code into the new framework and b) reactionary judges clinging to the "old" inquisitorial system in which they had the power to decide (judicially at least) whether the accused committed the crime, did not commit the crime, or might have committed the crime (but without enough evidence as to pronounce guilt). Those last two map pretty much directly onto the (2) and (3) given in the quote from the paper. And I think that they form the genesis of the present-day 530.1 and 530.2.
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Old 14th January 2020, 03:47 PM   #797
whoanellie
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Here is another citation which states that an accused can appeal an acquittal (not a dismissal):
Quote:
Even the accused may lodge an appeal against an acquittal, except when such a decision has ascertained that the criminal act did not occur or the accused did not commit it (Art. 593 para. 2 Code)
Taken from page 21.
M. Bolognari, ' The Appeal in the Italian Criminal Legal System: Legislative Reforms and Case Law'

Ceza Hukuku ve Kriminoloji Dergisi-Journal of Penal Law and Criminology 2018; 6(1):15-26

https://dergipark.org.tr/tr/download...le-file/498175

This is, I'm guessing, not the highest profile legal journal.
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Old 14th January 2020, 03:52 PM   #798
whoanellie
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Originally Posted by Numbers View Post
Unfortunately, I find your criticisms of my style of argumentation to be very similar to my impressions of your style of argumentation. Also, you do not seem to me to explicitly present or acknowledge your changes in the claims of your argument.

Since I have repeatedly posted my arguments on CPP
Article 530, including in posts as far back as 2015 when Grinder questioned whether there was a legal or perceptual difference in acquittals under paragraph 2 compared to paragraph 1, and I have recently went over the Italian law - which is not my position, but the actual texts of the Italian law - I can only say I find your statements that you do not understand my position odd. I would ask that you read those posts thoroughly and bring up specific questions for those parts that you claim not to understand.

In your posts, you fail in cases I have observed to adequately present or explain the contents of your sources, and you accept them uncritically.

As an example, in terms of examining sources critically, let's consider the 1992 paper by Pizzi and Marafioti, which you have used to support your argument that there is a hierarchy of acquittals. In a previous post, I had stated I had looked at the paper quickly and had seen no reference to your point. In fact, I was looking for text relating to CPP Article 530, which you claimed had a difference in hierarchy (or something, I am not clear) between paragraphs 1 and 2, and I saw no reference at all in Pizzi to Article 530. I had asked you to present in a post, or provide a location within the source, to assist in finding your supporting information. If you provided it, I must apologize that I did not see it in your posts.

However, I have now had time to read through the relevant part of the Pizzi paper more thoroughly and I have found apparently what is the basis for your opinion about a hierarchy in acquittals.

First, I will cut and paste the Pizzi text, from near the bottom of page 15, here:



Now I will offer some comments about the above statement by Pizzi. I hope you don't take them personally; they are meant objectively.

1. Pizzi and Marafioti wrote this article for the Yale Law Review in 1992. Italy has undergone consider changes in its legal system since that time. It is possible that the statement reflects the Italian legal system in 1992, after the initial reforms of 1988, and we know that the Italian legal system continued to change after 1992. For example, as I pointed out in previous posts, according to my 2014 Gialuz et al. reference, Italy had adopted changes to its codified laws to include the principle that an accused may be convicted only if proven guilty BARD in 2006 (in CPP Article 533), long after the Pizzi paper was published. And Knox and Sollecito were tried under Italian law as it was in 2007 - 2015, not as it was in 1992. In other posts, I have copied and pasted information from the Brocardi law firm website* (presumed current as of 2020) that states that "acquittal for insufficient evidence" had been abolished by a law that substituted "insufficient or contradictory proof [evidence] to absolute lack of proof [evidence] (date of the law not given in the source). Since, I far as I can tell from reading the 2014 CPP in English, there is no information or law in the current CPP that the acquittal formulas (some of which have clearly changed since 1992) have any hierarchy, I would suggest that the hierarchy presented by Pizzi is of historical interest only.

2. Pizzi and Marafioti document many of their statements with footnotes, providing citations to verify their information. That is a typical legal and academic method of presenting information. Oddly, their is no footnote or other citation for the Pizzi statement on the hierarchy of acquittals. Perhaps its merely an oversight, but it makes it impossible to verify the source of the information in Italian law (whether historical or current).

3. According to the brief biographical note, William Pizzi was professor of law at University of Colorado School of Law, and he was visiting professor at University of Perugia** Faculty of Law 1990 - 1991. This note suggests that he was not an Italian lawyer, and while his information shouldn't be impeached on that basis, I would suggest that the information provided by current lawyers, especially academics in procedural law, such as Gialuz and Luparia, should be considered highly relevant. In addition, it should be remembered that the real source document is the Italian Code of Criminal Procedure, written by the Italian parliament and its legal staff, in Italian.

4. The idea that judges choose from a range of acquittal formulas is correct, but the judge is required, under current Italian law, to choose the formula(s) that actually convey the cause of the acquittal. They are not some kind of negotiable slogans, but rather, for the short-form verdict, a very brief summary of the result of the evaluation of evidence as presented in the grounds of the judgment as documented in the motivation report text.

*La legge delega, all'art. 2, n. 11 prevedeva l'elencazione di diverse formule di proscioglimento o di assoluzione ed aboliva l'assoluzione per insufficienza di prove contemplata invece dall'abrogato codice, equiparando la prova insufficiente o contraddittoria alla mancanza assoluta di prova.

La norma in commento, riprendendo le direttive della legge delega, elenca le formule di assoluzione tradizionali, contraddistinte da natura tassativa.

The law, in art. 2, no. 11 provided for the list of different dismissal or acquittal formulas and abolished acquittal for insufficient evidence [proof] contemplated by the repealed code, equating insufficient or contradictory proof [evidence] to absolute lack of proof [evidence].

The rule in question, taking up the directives of the delegated law, lists the traditional acquittal formulas, characterized by a mandatory nature.

Note: Relevant translations of "prove" and "prova" are primarily "evidence" or "proof", respectively. However, each can be translated to either word.

** The favorite Italian town of all Knox - Sollecito case posters.
Numbers, do you not realize that I quoted the same passage from Pizzi and Marafioti in post #769 above????? Perhaps it is not I who is failing to read posts carefully.
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Old 14th January 2020, 04:23 PM   #799
LondonJohn
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Originally Posted by whoanellie View Post
Numbers, do you not realize that I quoted the same passage from Pizzi and Marafioti in post #769 above????? Perhaps it is not I who is failing to read posts carefully.

However Numbers is correct in that the paper discusses the previous judicial/legal framework, and not the current (post-1997) state of affairs. Though as I wrote in my previous post, I do think that this Pizzi/Marafioti article is very useful to our present discussion, as it articulates what the degrees of acquittal used to be - and I think the article provides excellent reason to believe that those previous "degrees" were simply shoehorned into the new adversarial framework (in which there really should only have been one flavour of "regular"* acquittal: where the court does not believe that the guilt of the accused was proved beyond all reasonable doubt)


* By "regular", I mean acquittals by way of a verdict in a court trial, and excluding e.g. acquittals by way of expiration of limitations or mental incapacitation.....

Last edited by LondonJohn; 14th January 2020 at 04:26 PM.
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Old 14th January 2020, 04:43 PM   #800
whoanellie
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Originally Posted by LondonJohn View Post
However Numbers is correct in that the paper discusses the previous judicial/legal framework, and not the current (post-1997) state of affairs. Though as I wrote in my previous post, I do think that this Pizzi/Marafioti article is very useful to our present discussion, as it articulates what the degrees of acquittal used to be - and I think the article provides excellent reason to believe that those previous "degrees" were simply shoehorned into the new adversarial framework (in which there really should only have been one flavour of "regular"* acquittal: where the court does not believe that the guilt of the accused was proved beyond all reasonable doubt)


* By "regular", I mean acquittals by way of a verdict in a court trial, and excluding e.g. acquittals by way of expiration of limitations or mental incapacitation.....
I would be very interested to know whether post-1992 reforms (reforms of the reforms?) changed the degrees of acquittal described by Pizzi and Marafioti. Italian law has concepts that are very foreign to American sensibilities. One thing is clear to me, however, the concept of 'degrees of acquittal' is or was baked into Italian law in a way that is, indeed, 'counter-intuitive' to me.
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