ISF Logo   IS Forum
Forum Index Register Members List Events Mark Forums Read Help

Go Back   International Skeptics Forum » General Topics » Trials and Errors
 


Welcome to the International Skeptics Forum, where we discuss skepticism, critical thinking, the paranormal and science in a friendly but lively way. You are currently viewing the forum as a guest, which means you are missing out on discussing matters that are of interest to you. Please consider registering so you can gain full use of the forum features and interact with other Members. Registration is simple, fast and free! Click here to register today.
Tags !MOD BOX WARNING! , Amanda Knox , Italy cases , Meredith Kercher , murder cases , Raffaele Sollecito

Reply
Old 10th January 2019, 02:43 PM   #2241
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
Originally Posted by Numbers View Post
Of relevance to the smear campaign ("slut shaming") against Amanda Knox, including the release by the Italian authorities of her private information to the media:

The ECHR ruled against Azerbaijan in favor of a female journalist who claimed 2 violations of Article 8 and a violation of Article 10 of the Convention because of a smear campaign, including release of private sexual information, about her. Here is the ECHR press release summary:

Azerbaijani authorities failed to investigate serious invasion of well-known investigative journalist’s privacy

In today’s {10 Jan 2019} Chamber judgment in the case of Khadija Ismayilova v. Azerbaijan (application no. 65286/13) the European Court of Human Rights held, unanimously, that there had been:

two violations of Article 8 (right to respect for private and family life, home and correspondence) of the European Convention on Human Rights, and a violation of Article 10 (freedom of expression) of the European Convention.

The case concerned an alleged smear campaign against a well-known journalist, Khadija Rovshan qizi Ismayilova. In particular, she was sent a letter threatening her with public humiliation if she did not stop her investigative reporting. When she refused, a “sex video” filmed without her knowledge of her and her then boyfriend was posted on the Internet.

Around the same time, newspapers ran stories accusing her of anti-government bias and immoral behaviour. She later discovered hidden cameras all over her flat.

The Court found that such acts had been an affront to Ms Ismayilova’s human dignity which the State had had a duty to investigate. However, there had been significant flaws and delays in the investigation, even though there had been obvious leads. For example, no formal statement had been taken from a telephone engineer with State-owned Baktelekom who had admitted that he had been instructed to install a second telephone line in Ms Ismayilova’s flat and to trace wires to it. Most importantly, no line of inquiry had been developed to see if there had been a link between Ms Ismayilova’s being a well-known investigative journalist highly critical of the Government and the criminal acts against her.

That situation had been compounded by the articles published in allegedly pro-government newspapers and by the authorities’ public disclosure of a report on the status of the investigation which had, for no apparent reason, included information on Ms Ismayilova’s private life.

The Court took particular note of reports of journalists in Azerbaijan being persecuted and the perceived climate of impunity for such acts.
_____
While the ECHR's 29 April 2016 Communication in Knox v. Italy mentions the smear campaign, including the relevant court decision in a civil case won by Knox, it is not included in the complaints, and thus it is not certain from publicly available information that the smear campaign will be a subject of the anticipated ECHR judgment.
Originally Posted by TruthCalls View Post
I would think if her appeal was for a conviction on the murder charge then this would be relevant (her published list of partners, her bogus HIV diagnosis, etc.) But since her appeal is only for the calunnia charge against Lumumba, I don't think there is much in this area that would apply. Maybe I'm missing something?
This is actually an issue that is, in my opinion, uncertain.

The ECHR could discuss it as being part of a scheme or regimen of abuse and violations of rights directed by the Italian authorities against Knox, without necessarily holding it a violation of Article 8 in the judgment. It would perhaps not have been admissible as a claim because of the 6-month limit if viewed as an isolated incident, but could be admissible if viewed as an element in a continuing series of violations. On the other hand, the ECHR could ignore this specific issue as relatively unimportant or not admissible due to timing or possibly non-exhaustion of remedies, and focus the judgment on the claims against Italy explicitly listed in the Communication.

Last edited by Numbers; 10th January 2019 at 02:45 PM.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 10th January 2019, 03:06 PM   #2242
Vixen
Penultimate Amazing
 
Vixen's Avatar
 
Join Date: Apr 2015
Location: Moomin Valley
Posts: 14,671
Originally Posted by Numbers View Post
This is actually an issue that is, in my opinion, uncertain.

The ECHR could discuss it as being part of a scheme or regimen of abuse and violations of rights directed by the Italian authorities against Knox, without necessarily holding it a violation of Article 8 in the judgment. It would perhaps not have been admissible as a claim because of the 6-month limit if viewed as an isolated incident, but could be admissible if viewed as an element in a continuing series of violations. On the other hand, the ECHR could ignore this specific issue as relatively unimportant or not admissible due to timing or possibly non-exhaustion of remedies, and focus the judgment on the claims against Italy explicitly listed in the Communication.
It can only judge on issues pleaded.
__________________
If man has no tea in him, he is incapable of understanding truth and beauty. ~ Japanese Proverb
Vixen is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 10th January 2019, 04:15 PM   #2243
TruthCalls
Graduate Poster
 
Join Date: Oct 2011
Posts: 1,103
Originally Posted by Numbers View Post
This is actually an issue that is, in my opinion, uncertain.

The ECHR could discuss it as being part of a scheme or regimen of abuse and violations of rights directed by the Italian authorities against Knox, without necessarily holding it a violation of Article 8 in the judgment. It would perhaps not have been admissible as a claim because of the 6-month limit if viewed as an isolated incident, but could be admissible if viewed as an element in a continuing series of violations. On the other hand, the ECHR could ignore this specific issue as relatively unimportant or not admissible due to timing or possibly non-exhaustion of remedies, and focus the judgment on the claims against Italy explicitly listed in the Communication.
I'm still not following. I'm not aware of any effort to smear Amanda as of 5/6 Nov, which is when the calunnia is claimed to have occurred. I would think it a stretch to look at events that took place after her arrest and try to tie them back as further proof the police violated her human rights prior to her arrest. But again, perhaps I'm missing something.
TruthCalls is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 10th January 2019, 04:21 PM   #2244
TruthCalls
Graduate Poster
 
Join Date: Oct 2011
Posts: 1,103
Originally Posted by Vixen View Post
It can only judge on issues pleaded.
Yes, but that's not the issue here. Had the police, prior to 5/6 Nov, attempted to smeared Amanda in an effort to psychologically weaken her as they tried to coerce a confession, then that evidence could certainly be used in ruling on her appeal. However, my point to Numbers is that I'm not aware of the police attempting to smearing Amanda prior to 5/6 Nov, so it seems the issue is moot.
TruthCalls is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 10th January 2019, 04:23 PM   #2245
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
For the ECHR, a "pleading" is a written, faxed, or electronic document relating to a case. There is a format for pleadings required by the ECHR. The desired form of the contents of a pleading are specified by the ECHR as:

10. A pleading should include:
(a) the application number and the name of the case;
(b) a title indicating the nature of the content (e.g., observations on admissibility [and the merits]; reply to the Government’s/the applicant’s observations on admissibility [and the merits]; observations on the merits; additional observations on admissibility [and the merits]; memorial etc.).

An ECHR application is initiated with by the "institution of proceedings" as specified by the ECHR. Individual applications under Article 34 of the Convention must be submitted in writing; the ECHR recommends using the form it provides online. The application submission must include, along with identification of the applicant and contact information, an account of the facts and the complaints (allegations of violations of the Convention) and indications that domestic remedies (along one path) have been exhausted and that the application is within the allowed time limit.

The pleadings may expand upon information in the application.

The ECHR states (in some judgments) that it is the master of the facts and of the law, and may, for example, change which specific articles of the Convention are claimed to be violated based on the ECHR's interpretation of the facts.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 10th January 2019, 07:52 PM   #2246
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
Originally Posted by TruthCalls View Post
I'm still not following. I'm not aware of any effort to smear Amanda as of 5/6 Nov, which is when the calunnia is claimed to have occurred. I would think it a stretch to look at events that took place after her arrest and try to tie them back as further proof the police violated her human rights prior to her arrest. But again, perhaps I'm missing something.
You make some good points.

However, the ECHR will not be looking only at the pre-trial events and arrest. In fact, had Amanda Knox been acquitted of calunnia, the ECHR case and the potential ECHR review would be very different.

Several - perhaps all - of Knox's claims either explicitly or implicitly reference violation of the right to a fair trial (Article 6.1), either predicated on the events of the Nov. 5/6 interrogation or more broadly (and implicitly, in terms of the text of the Communication) events during her detention, the trials, and the reasoning of the Italian court judgments, including all relevant ones up to the Boninsegna court verdict and motivation report.

For example, according to the Gemelli CSC panel, in its 2008 judgment, which was given in response to an appeal by Knox against her detention, Knox's defense rights, specifically those of CPP Article 63, were violated under Italian law during the Nov. 5/6 interrogations by the police and by Mignini, respectively. Therefore, in accordance with Italian law, statements she made during those interrogations could not be used against her. The Italian law states this as an absolute prohibition or inadmissibility. However, the Gemelli CSC panel decided that, because Knox had written a "defensive statement" (Memoriale 1) on Nov. 6, after the interrogations were concluded, her statements could be used against her solely for the charge of calunnia against Lumumba. It is likely the ECHR will review this CSC judgment for conformity to Italian law and even more likely that it will review it for conformity to the Convention and ECHR case-law.

Because the issue of fair trial is central, there is a probably small chance that the ECHR will examine the effect of the smear campaign, as it may relate to general issues of bad faith (deception) and of abuses of privacy.

For convenience, here are the (translated) Complaints and Questions of the Communication:

COMPLAINTS

1. The applicant {Amanda Knox} raises several complaints concerning the fairness of the criminal proceedings following which she was sentenced to three years in prison for false accusation.

a) Relying on Article 6 §§ 1 and 3 a) of the Convention, the applicant complained of not being informed promptly and in a language that she understood of the nature and cause of the accusation against her.

b) In terms of Article 6 §§ 1 and 3 c), she also alleges that she was not assisted by a lawyer during the interrogation of 6 November 2007.

c) Relying on Article 6 §§ 1 and 3 e), the applicant also complains that she was not assisted by a professional and independent interpreter during interrogation and that the police officer who assisted during the interrogation of 6 November 2007 performed the duties of a "mediator", thereby suggesting hypotheses about what events had taken place.

2. Relying on Article 3 of the Convention, the applicant complains that the slaps on the head that she suffered (scappellotti) constituted inhuman and degrading treatment. {An ECHR finding of an Article 3 violation would mean the use of a statement from the interrogation to secure a conviction was a violation of Article 6.1.}

3. Relying on Article 8 of the Convention, she denounces the violation of her right to respect for private and family life, on the grounds that, on 6 November 2007, she was forced to answer questions about Mr DL so that she was unable to exercise judgment and will (incapacità di intendere volere e) and under psychological pressure. {An ECHR finding of an Article 8 violation could mean the use of a statement from the interrogation to secure a conviction was a violation of Article 6.1. This violation, if found, would seem severe enough to mean that a statement obtained from its use would mean there was a violation of Article 6.1.}

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted the domestic remedies available to her to complain about the violation of Article 3 of the Convention, concerning the slaps (scappellotti) allegedly suffered, and Articles 6 §§ 1 and 3 a), c) and e) and 8 of the Convention?

2. If so:

a) Was the applicant subjected, in breach of Article 3 of the Convention, to inhuman or degrading treatment?

b) Was the applicant, as required by Article 6 § 3 a) of the Convention, informed promptly, in a language she could understand and in detail, of the nature and cause of the charges against her for false accusation?

c) Did the applicant have the assistance of counsel of her choice, as required by Article 6 § 3 c) of the Convention, especially during the interrogation of 6 November 2007?

d) Did the applicant obtain the free assistance of an interpreter, within the meaning of Article 6 § 3 e) of the Convention?

e) Did the psychological pressure allegedly suffered by the applicant during the interrogations of 6 November 2007, violate the right of the applicant to a fair trial within the meaning of Article 6 § 1 of the Convention, and the right to respect for private life protected by Article 8 § 1 of the Convention?

Last edited by Numbers; 10th January 2019 at 07:53 PM.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 10th January 2019, 09:51 PM   #2247
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
Originally Posted by Numbers View Post
You make some good points.

However, the ECHR will not be looking only at the pre-trial events and arrest. In fact, had Amanda Knox been acquitted of calunnia, the ECHR case and the potential ECHR review would be very different.

Several - perhaps all - of Knox's claims either explicitly or implicitly reference violation of the right to a fair trial (Article 6.1), either predicated on the events of the Nov. 5/6 interrogation or more broadly (and implicitly, in terms of the text of the Communication) events during her detention, the trials, and the reasoning of the Italian court judgments, including all relevant ones up to the Boninsegna court verdict and motivation report.

For example, according to the Gemelli CSC panel, in its 2008 judgment, which was given in response to an appeal by Knox against her detention, Knox's defense rights, specifically those of CPP Article 63, were violated under Italian law during the Nov. 5/6 interrogations by the police and by Mignini, respectively. Therefore, in accordance with Italian law, statements she made during those interrogations could not be used against her. The Italian law states this as an absolute prohibition or inadmissibility. However, the Gemelli CSC panel decided that, because Knox had written a "defensive statement" (Memoriale 1) on Nov. 6, after the interrogations were concluded, her statements could be used against her solely for the charge of calunnia against Lumumba. It is likely the ECHR will review this CSC judgment for conformity to Italian law and even more likely that it will review it for conformity to the Convention and ECHR case-law.

Because the issue of fair trial is central, there is a probably small chance that the ECHR will examine the effect of the smear campaign, as it may relate to general issues of bad faith (deception) and of abuses of privacy.

For convenience, here are the (translated) Complaints and Questions of the Communication:

COMPLAINTS

1. The applicant {Amanda Knox} raises several complaints concerning the fairness of the criminal proceedings following which she was sentenced to three years in prison for false accusation.

a) Relying on Article 6 §§ 1 and 3 a) of the Convention, the applicant complained of not being informed promptly and in a language that she understood of the nature and cause of the accusation against her.

b) In terms of Article 6 §§ 1 and 3 c), she also alleges that she was not assisted by a lawyer during the interrogation of 6 November 2007.

c) Relying on Article 6 §§ 1 and 3 e), the applicant also complains that she was not assisted by a professional and independent interpreter during interrogation and that the police officer who assisted during the interrogation of 6 November 2007 performed the duties of a "mediator", thereby suggesting hypotheses about what events had taken place.

2. Relying on Article 3 of the Convention, the applicant complains that the slaps on the head that she suffered (scappellotti) constituted inhuman and degrading treatment. {An ECHR finding of an Article 3 violation would mean the use of a statement from the interrogation to secure a conviction was a violation of Article 6.1.}

3. Relying on Article 8 of the Convention, she denounces the violation of her right to respect for private and family life, on the grounds that, on 6 November 2007, she was forced to answer questions about Mr DL so that she was unable to exercise judgment and will (incapacità di intendere volere e) and under psychological pressure. {An ECHR finding of an Article 8 violation could mean the use of a statement from the interrogation to secure a conviction was a violation of Article 6.1. This violation, if found, would seem severe enough to mean that a statement obtained from its use would mean there was a violation of Article 6.1.}

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted the domestic remedies available to her to complain about the violation of Article 3 of the Convention, concerning the slaps (scappellotti) allegedly suffered, and Articles 6 §§ 1 and 3 a), c) and e) and 8 of the Convention?

2. If so:

a) Was the applicant subjected, in breach of Article 3 of the Convention, to inhuman or degrading treatment?

b) Was the applicant, as required by Article 6 § 3 a) of the Convention, informed promptly, in a language she could understand and in detail, of the nature and cause of the charges against her for false accusation?

c) Did the applicant have the assistance of counsel of her choice, as required by Article 6 § 3 c) of the Convention, especially during the interrogation of 6 November 2007?

d) Did the applicant obtain the free assistance of an interpreter, within the meaning of Article 6 § 3 e) of the Convention?

e) Did the psychological pressure allegedly suffered by the applicant during the interrogations of 6 November 2007, violate the right of the applicant to a fair trial within the meaning of Article 6 § 1 of the Convention, and the right to respect for private life protected by Article 8 § 1 of the Convention?
In interpreting or analyzing the ECHR's Communication to Italy in this case, it should be pointed out that in keeping with its usual practice, the ECHR has made only the first Communication available online. However, there were apparently two additional Communications to Italy, based on the Case Details and also shown on the HUDOC citation as "Affaire communiquée Affaire communiquée Affaire communiquée".

See: https://hudoc.echr.coe.int/eng#{%22docname%22:[%22\%22KNOX%20c.%20ITALIE\%22%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22,%22COMMUNICATEDCA SES%22]}

More central to the issue of whether it's "a stretch to look at events that took place after her arrest and try to tie them back as further proof the police violated her human rights prior to her arrest" is that the real point of the case, for Knox to succeed, is to show that her conviction for calunnia (false accusation) was a violation of her Convention rights because of an unfair trial, and the unfair trial resulted from, among other factors, the procedural violations and consequent violations of her defense rights by the Italian authorities during the Nov. 5/6 interrogations.

Had the Italian courts excluded Knox's interrogation statements from the proceedings entirely, there would presumably have been no trial for calunnia and thus no conviction.

Had the statements been admitted as evidence to the calunnia trial but had the Italian courts evaluated the evidence of coercion and suggestive interpretation during the interrogation, including Knox's Memoriales 1 and 2, and had then acquitted Knox of calunnia on those grounds (that is, that she did not willfully and knowingly make a false accusation), there would be no argument for a wrongful conviction resulting from an unfair trial.

Thus, the minimum "legal universe" that the ECHR, as a human rights court, would evaluate for this case must be the entire proceedings materially contributing to the conviction for calunnia. This "legal universe" is non-exhaustively defined by the ECHR's outline for the evaluation of a conviction allegedly resulting from "pre-trial procedural failings" shown in Ibrahim and others v. the UK [GC] and subsequent cases such as Beuze v. Belgium [GC].* However, on laying out a path conclusively leading to a judgment, the ECHR may see some issues as redundant to more material issues on that path, and therefore might avoid exploring those redundant issues in detail.

*We can be confident that the ECHR will adopt this approach because it has stated in those judgments that it will follow that procedure in such cases.

Last edited by Numbers; 10th January 2019 at 10:00 PM.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 10th January 2019, 10:16 PM   #2248
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
I had intended to discuss the following in the previous post. So, from the Communication:

b) Was the applicant, as required by Article 6 § 3 a) of the Convention, informed promptly, in a language she could understand and in detail, of the nature and cause of the charges against her for false accusation?

Comments: Knox was not accused of making a false accusation (committing calunnia) at the time of her interrogation (Nov. 5/6) or at the time of her arrest hearing on charges of the murder/rape of Kercher (Nov. 8).

I am confident that the charge of calunnia did not emerge from the prosecutor until about the date that Lumumba was released or later. It was surely known on or before 1 April 2008, the date of the Gemelli CSC panel motivation report, which mentions the charge of calunnia. Does anyone know and have evidence for when Knox was informed of the charge?

The ECHR question is somewhat of a misunderstanding and misstatement of Complaint 1a:

Relying on Article 6 §§ 1 and 3 a) of the Convention, the applicant complained of not being informed promptly and in a language that she understood of the nature and cause of the accusation against her.

Knox was not informed that she was a suspect and read her rights to have a lawyer and to remain silent at the Nov. 5/6 interrogation. Furthermore, as a suspect, CPP Article 64 would apply, and according to that law she would have been warned that any statement attributing blame to another would place her in the role of witness - in other words, a warning not to commit calunnia.

Last edited by Numbers; 10th January 2019 at 10:24 PM.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 11th January 2019, 09:16 AM   #2249
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
There may be confusion among us about an aspect of ECHR case-law because there is actually a complexity in that case-law relating to the denial of a lawyer during an interrogation.

Under ECHR case-law, denying a suspect a lawyer while she is under a first (pre-trial) interrogation is a violation of Convention Article 6.3c, and affects the fairness of a trial, such that statements made by the suspect during that interrogation, if used to convict her or otherwise materially result in conviction, results (generally) in a violation of Article 6.1, an unfair trial.

However, if the suspect deprived of a lawyer during the pre-trial interrogation comes to the ECHR before the trial is concluded and claims that the detention is unfair, as a violation of Convention Article 5 (the right to liberty), the ECHR will rule the application inadmissible, because in its view a violation of Article 6.3c is linked to Article 6 and not to Article 5. More precisely, the ECHR considers, based on its authority under the Convention and differences in the legal principles underlying Articles 5 and 6, that it must allow the state the freedom or opportunity to correct the pre-trial violation of Article 6.3c during the trial, for example, by the state excluding (ruling inadmissible) from the trial the suspect's statements resulting from the violation of Article 6.3c.

The relevant case-law is in the inadmissibility decision for the case Simons v. Belgium [dec] 71407/10 28/08/2012. Here is an excerpt from the ECHR's translation of the original decision (in French):

31. This case-law clearly expresses the following principle: first, a person “charged with a criminal offence”, within the meaning of Article 6 of the Convention, is entitled to receive legal assistance from the time he or she is taken into police custody or otherwise remanded in custody and, as the case may be, during questioning by police or by an investigating judge; secondly, whilst a restriction of this right may in certain circumstances be justified and be compatible with the requirements of that Article (see, by way of example, Hovanesian v. Bulgaria, no. 31814/03, 21 December 2010), any such restriction that is imposed by a systemic rule of domestic law is inconsistent with the right to a fair trial.

32. The Court would observe, however, that this is one of the principles of the right to a fair trial, specifically deriving from Article 6, paragraph 3, of the Convention, which secures among other things the right for a person “charged with a criminal offence” to have legal assistance of his own choosing. It is not one of the “general principles” implied by the Convention, which are, by definition, transversal in nature.

The Court further points out that the general principles implied by the Convention to which the Article 5 § 1 case-law refers are the principle of the rule of law (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 461, ECHR 2004‑VII) and, connected to the latter, that of legal certainty (see, among other authorities, Baranowski v. Poland, no. 28358/95, § 52, ECHR 2000 III), the principle of proportionality (see, for example, Enhorn v. Sweden, no. 56529/00, § 36, ECHR 2005-I) and the principle of protection against arbitrariness (which is, moreover, the very aim of Article 5 – see, inter alia, Erkalo, cited above, § 52).

33. Thus, whilst the statutory inability for a person “charged with a criminal offence”, who is deprived of his liberty, to receive legal assistance from the beginning of his detention affects the fairness of the criminal proceedings against him, it cannot be inferred from that sole fact that his detention breaches Article 5 § 1 of the Convention for failure to satisfy the requirement of lawfulness inherent in that provision.

34. In the light of the foregoing, having examined the application under Article 5 § 1 of the Convention, the Court finds that it is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

Last edited by Numbers; 11th January 2019 at 09:30 AM.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 12th January 2019, 06:52 PM   #2250
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
Let's return to the question of the smear campaign against Amanda Knox, and the wrongful disclosure of her personal information by the Italian authorities to the media for their publication.

1. It's been suggested in a post that this issue is moot to the question of the violations alleged in the case Knox v. Italy.

2. It's also been claimed or implied, in a different post by a different poster, that this issue is not in the "pleadings" of Knox v. Italy.

Let's examine the second claim or implication first. It's uncertain what the poster meant by "pleadings", since in the legal vocabulary of the ECHR, "pleadings" are the documents exchanged between the parties and the ECHR after the initial Communication. Certainly, however, there is no claim of a violation directly mentioning that issue in the 29 April 2016 Communication. However, the ECHR in the "Facts" section of the Communication choose to detail what may have been an initial or early incident in the smear campaign against Knox, and the resulting judgment in her favor. Thus, the degree of detail may have significance as one aspect of the case.

It would thus be premature to judge the recitation of the smear campaign incident as "moot", partly because the violations alleged by Knox are not merely violations of Convention Article 6.3, but violations of Convention Article 6.1 (unfair trial) in conjunction with violations of some of the defense rights enshrined within Article 6.3. The smear campaign may, for example, be included in the judgment of the ECHR as indicative of the attitudes or intentions of the Italian authorities to conduct an unfair trial, since the Massei assize court and Hellmann appeal court, in accordance with Italian law, each included lay judges who were not sequestered and would have been, almost certainly, exposed to the media smear campaign and thus possibly influenced by it. The Italian prosecutors (and the guilters) have suggested that Knox's sexual conduct (whether real or fabricated), such as that claimed by the smear campaign, was an indication of her guilt, including for the charge of calunnia.

Here is the original statement (in French) on the smear campaign in the "Facts of the Case" in the Communication:

4. La publication d’informations personnelles

Au cours de sa détention dans la prison de Pérouse, la requérante fut examinée par un médecin de l’institut pénitentiaire, à l’occasion d’un prétendu contrôle du virus HIV. À cette occasion, le médecin lui demanda d’indiquer toutes les personnes avec lesquelles elle avait entretenu des relations sexuelles.

Les jours suivants, ces informations privées furent publiées dans les journaux et reprises par différents média.

La requérante entama une procédure civile en dédommagement pour la violation de son droit à ne pas voir divulguer des informations personnelles. Par un jugement du 20 mars 2014, le tribunal de Milan reconnut la violation du droit de la requérante et condamna la partie défenderesse à la réparation du dommage qu’elle avait subi.

A translation to English by Google with my help (using Collins Reverso):

4. The publication of personal information

During her detention in Perugia prison, the applicant {Amanda Knox} was examined by a doctor of the prison {medical} institute, on the occasion of an alleged monitoring for HIV virus. On this occasion, the doctor asked her to indicate all the persons with whom she had sex.

In the following days, this private information was published in newspapers and taken up by different media.

The applicant brought civil proceedings for damages for the violation of her right not to have disclosed her personal information. By a judgment of 20 March 2014, the Milan Court recognized the violation of the applicant's right and sentenced the defendant to compensation for the damage she {the applicant, Amanda Knox} had suffered.

Last edited by Numbers; 12th January 2019 at 07:19 PM.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 12th January 2019, 10:41 PM   #2251
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
Another potential area of confusion which may be present regarding the smear campaign against Amanda Knox mentioned in Section 4 of the 29 April Communication to Italy is that the term "complaint" may be defined by the ECHR, in accordance with the Convention, differently than some posters may define it based upon their understanding of every-day language.

Here is an excerpt from a recent ECHR judgment, RADOMILJA AND OTHERS v. CROATIA [GC] 37685/10 22768/12 20/03/2018 that provides a definition for the ECHR term "complaint":

The notion of complaint

110. The wording of Article 34 indicates that a “claim” or complaint in Convention terms comprises two elements, namely factual allegations (i.e. to the effect that the claimant is the “victim” of an act or omission – see Eckle v. Germany, 15 July 1982, § 66, Series A no. 51) and the legal arguments underpinning them (i.e. that the said act or omission entailed a “violation by [a] Contracting Party of the rights set forth in the Convention or the Protocols thereto”). These two elements are intertwined because the facts complained of ought to be seen in the light of the legal arguments adduced and vice versa.

111. Noteworthy illustrations of this intrinsic link between the factual and legal components of a complaint may be found in the Rules of Court and in the Court’s case-law.

112. Rule 47 § 1 (e)-(f) of the Rules of Court, for example, provides that all applications must contain, inter alia, a concise and legible statement of the facts and of the alleged violation(s) of the Convention and the relevant arguments. By virtue of Rule 47 § 5.1, a failure to comply with these requirements, among others, may, under certain conditions, result in the application not being examined by the Court.

113. This relationship between the factual and legal components of a complaint is also reflected in the Court’s case-law, notably, in the oft-cited statement in paragraph 44 of the Guerra judgment that “a complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on” (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I).

114. The afore-mentioned dictum from the Guerra judgment features at the end of a statement dealing specifically with the jura novit curia principle (ibid.):

“... since [it] {the ECHR} is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant, a government or the Commission. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by those appearing before it and even under a provision in respect of which the Commission had declared the complaint to be inadmissible while declaring it admissible under a different one. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on.”

115. The statement in Guerra is in line furthermore with ample case-law suggesting that, while it is not possible to state in the abstract the importance of legal arguments, a complaint is always characterised by the alleged facts.
....

121. Therefore, while the Court has jurisdiction to review circumstances complained of in the light of the entirety of the Convention or to “view the facts in a different manner” (see Foti and Others, cited above, § 44), it is nevertheless limited by the facts presented by the applicants in the light of national law. As already stressed above (see paragraph 108) the system of protection established by the Convention does not enable it to seize on facts that have not been adduced by the applicant and to examine those facts for compatibility with the Convention (ibid.).

122. However, this does not prevent an applicant from clarifying or elaborating upon his or her initial submissions during the Convention proceedings. The Court has to take account not only of the original application but also of the additional documents intended to complete the latter by eliminating any initial omissions or obscurities (see, for example, Foti and Others, cited above, § 44, and K.-H.W. v. Germany [GC], no. 37201/97, § 107, ECHR 2001‑II (extracts)). Likewise, the Court may clarify those facts ex officio.
....

Conclusion
126. Against the background of all the considerations outlined above, it can be concluded that the scope of a case “referred to” the Court in the exercise of the right of individual application is determined by the applicant’s complaint. A complaint consists of two elements: factual allegations and legal arguments. By virtue of the jura novit curia principle the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant. It cannot, however, base its decision on facts that are not covered by the complaint. To do so would be tantamount to deciding beyond the scope of a case; in other words, to deciding on matters that have not been “referred to” it, within the meaning of Article 32 of the Convention.
_____
Comment: It would appear from the above case-law that the presence of facts in the official records of a case that demonstrate clearly that an applicant was the victim of a violation of an article of the Convention, even if there was not an explicit or "legally correct" labeling of the article in a claim in the application, the ECHR, of its own motion, could proceed to judge said violation under its ECHR-assigned "legally correct" characterization.

Furthermore, the ECHR must take into account any clarifications or elaborations to the facts (or legal arguments) contained in the documents filed by an applicant with the ECHR following the original application, including after the Communication.

However, issues of admissibility such as exhaustion of a domestic remedy (along one path) and the 6-month time limit to file an application after a final domestic decision would still need to be considered by the ECHR. The ECHR may or may not consider certain facts, such as the smear campaign, "osmotically" linked along with other pre-trial "procedural failings" in the case.

Last edited by Numbers; 12th January 2019 at 11:24 PM.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 13th January 2019, 04:19 PM   #2252
Vixen
Penultimate Amazing
 
Vixen's Avatar
 
Join Date: Apr 2015
Location: Moomin Valley
Posts: 14,671
Originally Posted by Numbers View Post
Another potential area of confusion which may be present regarding the smear campaign against Amanda Knox mentioned in Section 4 of the 29 April Communication to Italy is that the term "complaint" may be defined by the ECHR, in accordance with the Convention, differently than some posters may define it based upon their understanding of every-day language.

Here is an excerpt from a recent ECHR judgment, RADOMILJA AND OTHERS v. CROATIA [GC] 37685/10 22768/12 20/03/2018 that provides a definition for the ECHR term "complaint":

The notion of complaint

110. The wording of Article 34 indicates that a “claim” or complaint in Convention terms comprises two elements, namely factual allegations (i.e. to the effect that the claimant is the “victim” of an act or omission – see Eckle v. Germany, 15 July 1982, § 66, Series A no. 51) and the legal arguments underpinning them (i.e. that the said act or omission entailed a “violation by [a] Contracting Party of the rights set forth in the Convention or the Protocols thereto”). These two elements are intertwined because the facts complained of ought to be seen in the light of the legal arguments adduced and vice versa.

111. Noteworthy illustrations of this intrinsic link between the factual and legal components of a complaint may be found in the Rules of Court and in the Court’s case-law.

112. Rule 47 § 1 (e)-(f) of the Rules of Court, for example, provides that all applications must contain, inter alia, a concise and legible statement of the facts and of the alleged violation(s) of the Convention and the relevant arguments. By virtue of Rule 47 § 5.1, a failure to comply with these requirements, among others, may, under certain conditions, result in the application not being examined by the Court.

113. This relationship between the factual and legal components of a complaint is also reflected in the Court’s case-law, notably, in the oft-cited statement in paragraph 44 of the Guerra judgment that “a complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on” (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I).

114. The afore-mentioned dictum from the Guerra judgment features at the end of a statement dealing specifically with the jura novit curia principle (ibid.):

“... since [it] {the ECHR} is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant, a government or the Commission. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by those appearing before it and even under a provision in respect of which the Commission had declared the complaint to be inadmissible while declaring it admissible under a different one. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on.”

115. The statement in Guerra is in line furthermore with ample case-law suggesting that, while it is not possible to state in the abstract the importance of legal arguments, a complaint is always characterised by the alleged facts.
....

121. Therefore, while the Court has jurisdiction to review circumstances complained of in the light of the entirety of the Convention or to “view the facts in a different manner” (see Foti and Others, cited above, § 44), it is nevertheless limited by the facts presented by the applicants in the light of national law. As already stressed above (see paragraph 108) the system of protection established by the Convention does not enable it to seize on facts that have not been adduced by the applicant and to examine those facts for compatibility with the Convention (ibid.).

122. However, this does not prevent an applicant from clarifying or elaborating upon his or her initial submissions during the Convention proceedings. The Court has to take account not only of the original application but also of the additional documents intended to complete the latter by eliminating any initial omissions or obscurities (see, for example, Foti and Others, cited above, § 44, and K.-H.W. v. Germany [GC], no. 37201/97, § 107, ECHR 2001‑II (extracts)). Likewise, the Court may clarify those facts ex officio.
....

Conclusion
126. Against the background of all the considerations outlined above, it can be concluded that the scope of a case “referred to” the Court in the exercise of the right of individual application is determined by the applicant’s complaint. A complaint consists of two elements: factual allegations and legal arguments. By virtue of the jura novit curia principle the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant. It cannot, however, base its decision on facts that are not covered by the complaint. To do so would be tantamount to deciding beyond the scope of a case; in other words, to deciding on matters that have not been “referred to” it, within the meaning of Article 32 of the Convention.
_____
Comment: It would appear from the above case-law that the presence of facts in the official records of a case that demonstrate clearly that an applicant was the victim of a violation of an article of the Convention, even if there was not an explicit or "legally correct" labeling of the article in a claim in the application, the ECHR, of its own motion, could proceed to judge said violation under its ECHR-assigned "legally correct" characterization.

Furthermore, the ECHR must take into account any clarifications or elaborations to the facts (or legal arguments) contained in the documents filed by an applicant with the ECHR following the original application, including after the Communication.

However, issues of admissibility such as exhaustion of a domestic remedy (along one path) and the 6-month time limit to file an application after a final domestic decision would still need to be considered by the ECHR. The ECHR may or may not consider certain facts, such as the smear campaign, "osmotically" linked along with other pre-trial "procedural failings" in the case.
It says: 'power to decide'. In other words, the onus is still on the party to make an application [for the court to decide on] if it inadvertently cites the wrong Article or wants to add further complaints.

Quote:
Conclusion
126. Against the background of all the considerations outlined above, it can be concluded that the scope of a case “referred to” the Court in the exercise of the right of individual application is determined by the applicant’s complaint. A complaint consists of two elements: factual allegations and legal arguments. By virtue of the jura novit curia principle the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant. It cannot, however, base its decision on facts that are not covered by the complaint. To do so would be tantamount to deciding beyond the scope of a case; in other words, to deciding on matters that have not been “referred to” it, within the meaning of Article 32 of the Convention.
However, we are getting ahead of ourselves as the case hasn't even reached admissible stage and it is now in the sixth year.
__________________
If man has no tea in him, he is incapable of understanding truth and beauty. ~ Japanese Proverb

Last edited by Vixen; 13th January 2019 at 04:20 PM.
Vixen is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 13th January 2019, 08:39 PM   #2253
Stacyhs
Philosopher
 
Join Date: Mar 2016
Posts: 6,407
Originally Posted by Vixen View Post
It says: 'power to decide'. In other words, the onus is still on the party to make an application [for the court to decide on] if it inadvertently cites the wrong Article or wants to add further complaints.



However, we are getting ahead of ourselves as the case hasn't even reached admissible stage and it is now in the sixth year.
LOL. Back to that lie again, I see.

Quote:
The European Court of Human Rights has accepted a case submitted by Amanda Knox's lawyers over rights violations she allegedly suffered at the hands of Italian authorities during the 2007 investigation of the murder of British student Meredith Kercher.
Quote:

The European Court of Human Rights will now seek more information from the Italian government before the case is brought to trial, a process which could take several years.

“The court's acceptance of the appeal is great news,” Luciano Ghirga told Corriere della Sera. “It's difficult to get cases accepted.”

“I can't say it gives me any satisfaction however, as so much suffering has already been caused,” Ghirga added.
https://www.thelocal.it/20160518/ama...f-human-rights

But you go on believing otherwise if it makes you happy. Lots of people live in alternate realities quite well. Trump, for example.

Last edited by Stacyhs; 13th January 2019 at 08:44 PM.
Stacyhs is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 13th January 2019, 09:39 PM   #2254
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
Here are two rather odd and absurd guilter comments in the context of the ECHR case Knox v. Italy, which was Communicated to Italy on 29 April 2016, and is awaiting judgment:

1. “It says: 'power to decide'. In other words, the onus is still on the party to make an application [for the court to decide on] if it inadvertently cites the wrong Article or wants to add further complaints.”

Comment: Of course an individual party claiming a violation of the Convention must lodge an application to the ECHR in order for that international human rights court to judge the resulting case. And for the case Knox v. Italy, the application was lodged with the ECHR on November 24, 2013, as stated in the text of the Communication to Italy. So while the guilter comment is true in general, any implication by the guilters that there has not been an application lodged with the ECHR in the case Knox v. Italy is false and absurd.

2. “However, we are getting ahead of ourselves as the case hasn't even reached admissible stage and it is now in the sixth year .”

Comment: This statement is perhaps more absurd than the first one. Except for applications seeking “interim measures” – that is, when there is a claim of urgency due to a perceived immediate threat to an applicant's life, health, or extradition to a non-Council of Europe state – the ECHR moves slowly because of its considerable backlog of cases. As of 30 November 2018, the ECHR reports 57,550 applications pending before a judicial formation (ECHR court configuration).

As examples of the time required for an ECHR judgment on an application to be published, here are the significant milestone dates for three recent ECHR judgments and the known ones for Knox v. Italy. From these three examples as well as others, it is clear that a span of about three years (perhaps plus or minus one year) between the Communication to the government of the respondent state until publication of the judgment is not unusual. Thus, one can be hopeful, but not certain, that the judgment in Knox v. Italy will be published in 2019.

Case # 65286/13
Application lodged--- 26 September 2013
Communicated-------- 17 December 2015
Judgment published-- 10 January 2019

Case # 12879/09
Application lodged--- 12 December 2008
Communicated-------- 25 March 2015
Judgment published-- 10 January 2019

Case # 20452/14
Application lodged--- 15 March 2014
Communicated-------- 23 August 2016
Judgment published-- 10 January 2019

Case # 76577/13 Knox v. Italy
Application lodged--- 24 November 2013
Communicated-------- 29 April 2016
Judgment published-- To Be Determined (2019?)

An additional absurdity in the guilter statement is the claim that “the case hasn't even reached admissible stage”. This comment reflects a fundamental misunderstanding or misrepresentation of how the ECHR proceeds in its review of cases. Since the ECHR generally conducts a “joint examination of admissibility and merits” in accordance with its Rule 54A (see below), there is generally no “admissible” stage. A repetition of information previously posted in this forum follows.

The ECHR procedure after an application is received is to first conduct a preliminary review of admissibility after receipt of the application, and to decide immediately that the application is inadmissible if it does not pass the preliminary review.

If the application satisfies the preliminary review for admissibility for at least one claim, and after the ECHR requests and receives any additional information it needs from the applicant to answer its initial questions regarding the facts, the application consisting of a recitation of the relevant facts and the preliminarily admissible claims is Communicated to the respondent state, with questions addressed to the state regarding the claims, and any additional requests to the state and applicant for information on the facts.

In the procedure applicable before 1 January 2019, the state had 16 weeks after the publication of the Communication to file any claim that the application or any part of it was inadmissible. Any such claim is forwarded to the applicant for comment. The ECHR evaluates any claim of inadmissibility by the state and may also decide on its own motion of any inadmissibility of part or all the application at any point prior to judgment.

The responses from the respondent state and applicant received by the ECHR are then forwarded by it to the opposing sides for comments, which are given in documents called pleadings. The ECHR may then formulate additional questions for the parties. There may be any number of rounds of this procedure.

When the ECHR is fully satisfied that it has the facts required to reach judgment on the remaining admissible part of the application, it will, in accordance with its work load and priorities, reach a judgment and publish the judgment. The judgment will include a decision on the admissibility of each claim of a violation of the Convention and a judgment of the merits of each admissible claim.

If the ECHR decides that an applicant claim is inadmissible, no judgment follows the decision for that claim. However, if the ECHR decides that an applicant claim is admissible, the judgment of that claim immediately follows the decision for that claim. An ECHR decision that a claim is admissible means that the ECHR will go on to judge the merit of the claim's allegation of a violation of the Convention. Thus, for an admissible claim, the ECHR will find that there was a violation of the Convention or that there was no violation of the Convention. The ECHR will sometimes instead find that it is not necessary to judge the claim because it is redundant in light of the judgment of another claim in the case.

Thus, Knox v. Italy has passed the preliminary review of admissibility, since it has been Communicated to Italy, and is assigned to a chamber, the ECHR's First Section. The published judgment will contain the ECHR's final decision on the admissibility and final judgment on the merits of each claim of a violation of the Convention in the case.

Source: https://www.echr.coe.int/Pages/home....texts/rules&c=
PDF: Rules of the Court; See Rule 47, 49, 52, 54, 54A; relevant excerpts follow.

Rule 47 – Contents of an individual application
1. An application under Article 34 of the Convention shall be made on the application form provided by the Registry, unless the Court decides otherwise. It shall contain all of the information requested in the relevant parts of the application form and set out
....
(e) a concise and legible statement of the facts;
(f) a concise and legible statement of the alleged violation(s) of the Convention and the relevant arguments; and
(g) a concise and legible statement confirming the applicant’s compliance with the admissibility criteria laid down in Article 35 § 1 of the Convention.

Rule 49 – Individual applications
1. Where the material submitted by the applicant is on its own sufficient to disclose that the application is inadmissible or should be struck out of the list, the application shall be considered by a single-judge formation unless there is some special reason to the contrary.

Rule 52 – Assignment of applications to the Sections
1. Any application made under Article 34 of the Convention shall be assigned to a Section by the President of the Court, who in so doing shall endeavour to ensure a fair distribution of cases between the Sections. {Knox v. Italy is assigned to the First Section of the ECHR.}

Rule 54 – Procedure before a Chamber
1. The Chamber may at once declare the application inadmissible or strike it out of the Court’s list of cases. The decision of the Chamber may relate to all or part of the application.
2. Alternatively, the Chamber or the President of the Section may decide to
(a) request the parties to submit any factual information, documents or other material considered by the Chamber or its President to be relevant;
(b) give notice of the application or part of the application to the respondent Contracting Party and invite that Party to submit written observations thereon and, upon receipt thereof, invite the applicant to submit observations in reply;
(c) invite the parties to submit further observations in writing.

Rule 54A – Joint examination of admissibility and merits
1. When giving notice of the application to the respondent Contracting Party pursuant to Rule 54 § 2 (b), the Chamber may also decide to examine the admissibility and merits at the same time in accordance with Article 29 § 1 of the Convention. The parties shall be invited to include in their observations any submissions concerning just satisfaction and any proposals for a friendly settlement. The conditions laid down in Rules 60 and 62 shall apply, mutatis mutandis. The Court may, however, decide at any stage, if necessary, to take a separate decision on admissibility.
2. If no friendly settlement or other solution is reached and the Chamber is satisfied, in the light of the parties’ arguments, that the case is admissible and ready for a determination on the merits, it shall immediately adopt a judgment including the Chamber’s decision on admissibility, save in cases where it decides to take such a decision separately.

Last edited by Numbers; 13th January 2019 at 09:44 PM.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 13th January 2019, 11:13 PM   #2255
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
The case Knox v. Italy continues to be listed as a "Noteworthy Pending Case" in the Country Profile for Italy.

See: https://www.echr.coe.int/Pages/home..../factsheets&c=
PDF: Country Profiles: Italy; p 14. Updated November 2018

Furthermore, in HUDOC the only listing for Knox v. Italy is in the Communicated Cases section; there is no listing for it in the Decisions section (where cases ruled inadmissible overall are listed). Thus, Knox v. Italy remains a case that is not inadmissible and that will, therefore, be examined by the ECHR for admissibility and merits at some future date.

This is the summary description of the case in the Country Profile for Italy:


Amanda Marie Knox v. Italy (no. 76577/13)

Case communicated to the parties in April 2016

This case concerns criminal proceedings in which Ms Knox was found guilty of making a false accusation. The offending statements were taken while she was being questioned in the context of criminal proceedings for the murder and sexual assault of her flatmate. The applicant was accused of implicating another person whom she knew to be innocent.

Ms Knox alleges that the criminal proceedings in which she was convicted were unfair, relying on Article 6 §§ 1 and 3 (a) (right to a fair trial – right to be informed promptly of the charge), (c) (right to legal assistance), (e) (right to assistance from an interpreter), Article 3 (prohibition of inhuman and degrading treatment) and Article 8 (right to respect for private and family life) of the Convention.

Last edited by Numbers; 13th January 2019 at 11:14 PM.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 09:21 AM   #2256
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
Originally Posted by Stacyhs View Post
Stacyhs, I'm quoting excerpts from the source in your post and adding some information from the ECHR to emphasize the significance, in terms of how statistically difficult in terms of the quantity of applications it is for the ECHR to accept an application such as the one from Amanda Knox alleging violations of the Convention against Italy.

Here's a somewhat expanded excerpt from your source:

"Amanda Knox vs Italy: European court accepts rights violation case

The European Court of Human Rights has accepted a case submitted by Amanda Knox's lawyers over rights violations she allegedly suffered at the hands of Italian authorities during the 2007 investigation into the murder of British student Meredith Kercher.

Knox, who along with ex-boyfriend Raffaele Sollecito was cleared of the murder in 2015, claims she was subjected to an unfair trial and mistreatment during questioning - allegations which have never been investigated by the Italian authorities.

The case, put forward by lawyers Luciano Ghirga and Carlo Dalla Vedova, states Knox was not provided with a lawyer or official interpreter during interrogations on November 5th and 6th 2007, even though she only had an elementary grasp of Italian at the time.

The lawyers also allege that Knox, 28, was given inhumane treatment during questioning, including "degrading smacks to the head".
....
The European Court of Human Rights will now seek more information from the Italian government before the case is brought to trial, a process which could take several years.

“The court's acceptance of the appeal is great news,” Luciano Ghirga told Corriere della Sera. “It's difficult to get cases accepted.”

“I can't say it gives me any satisfaction however, as so much suffering has already been caused,” Ghirga added.

In March 2015, Knox and Sollecito were finally acquitted of the brutal murder of Kercher, who was killed at her student home in Perugia on November 1st 2007, by Italy's Court of Cassation.
...."
Source: https://www.thelocal.it/20160518/ama...f-human-rights

Here are some 2017 and 2018 statistics on the number of applications rejected compared to those accepted and the number of cases pending with Italy as the respondent state (Knox's application was lodged with the ECHR in 2013):

"The Court {ECHR} dealt with 2,106 applications concerning Italy in 2017, of which 1,973 were declared inadmissible or struck out*. It delivered 31 judgments (concerning 133 applications), 28 of which found at least one violation of the European Convention on Human Rights."

Applications concerning Italy before the ECHR on 1 July 2018:

Total pending (including incomplete to be finalized): 5227
Pending before a judicial formation (1, 3, 7, or 17 judges): 4667
Single judge: 65
Committee (3 judges): 3789
Chamber (7 judges): 812
Grand Chamber (17 judges): 1

Because Amanda Knox's case was Communicated to Italy (29 April 2016), and has not been ruled inadmissible, it would hold that her case is one of the 812 cases concerning Italy pending before a Chamber on 1 July 2018.

*"Struck out" cases include those that the applicant decided to drop or failed to follow-up, and generally cases of friendly settlements (similar to a US out-of-court settlement), and unilateral declarations (the ECHR imposes a compensation settlement even if the applicant does not agree). Attempted friendly settlements or unilateral declarations for cases with significant human rights issues are not necessarily struck out.

Source of the statistics: Country Profile for Italy

Last edited by Numbers; 14th January 2019 at 10:48 AM.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 10:14 AM   #2257
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
It turns out that sometimes the clearest and most concise descriptions of the ECHR's procedures are contained in its explanations of how it compiles its statistics.

Here are some excerpts from ECHR - Understanding the Court's Statistics, available as a PDF with link at:

https://www.echr.coe.int/Pages/home.aspx?p=reports&c=

First, on the meaning of "Communicated Case (Application)":

An application is “communicated” when the Court gives notice of an application to the respondent Government. This may include:

- informing them that an urgent or important case has been lodged;

- requesting factual information;

- requesting observations;

- informing them of the subsequent procedure without asking for observations (in the case of repetitive applications where the Court’s case-law is well-established).

Second, on the over-all procedure, including after Communication:

- When the applicant sends the completed application form and all necessary information and documents in compliance with the time-limit, an application is allocated to a judicial formation.

- An application may be declared inadmissible or struck out of the Court’s list of cases by a Single-Judge formation, Committee or a Chamber, without any further procedural steps.

- Otherwise the Section President or the Chamber gives notice of the application to the respondent Government (“communication”).

- At the communication stage the Section Registrar may encourage the Parties to reach a friendly settlement. If the parties accept the Registrar’s proposal, reach a settlement on their own initiative or if the Court is otherwise satisfied that the case has been settled (e.g. by means of the Government’s unilateral declaration), it is then struck out of the list of cases.

- If the application has not been settled, the Chamber or Committee resumes the examination of the admissibility and merits. Unless the Chamber or Committee decides at this stage to declare the application inadmissible, the decision on admissibility is usually incorporated in the judgment on the merits. A judgment adopted by a Committee is final at the moment of delivery, whereas a Chamber judgment becomes final on expiry of a three-month period during which the Parties may request that the case be referred to the Grand Chamber or when a referral request is rejected by the Panel.

- If a Party’s request is accepted by the Grand Chamber Panel, the case is referred to the Grand Chamber, where a second judgment is delivered in due course. Only a very small percentage of cases are referred by the Panel to the Grand Chamber. Judgments adopted by the Grand Chamber are final on the date of delivery.

- An application may be struck out of the Court’s list of cases at any procedural stage if the applicant does not wish to pursue the case or does not reply to correspondence from the Court.

Third, on the meanings of "Friendly Settlement" and "Unilateral Declaration":

A friendly settlement takes place when the parties reach an agreement, facilitated by the Court, and the Government may undertake to pay a certain amount to the applicant(s) to cover all damage and expenses. The Court considers such an application as resolved and strikes it out of the list of cases.

A unilateral declaration is made by the respondent Government when they undertake to redress the damage sustained by an applicant; this may occur when the applicant refuses to accept a friendly-settlement proposal without giving a valid justification. If the Court considers the Government’s offer as satisfactory, the application is struck out of the list of cases.

Last edited by Numbers; 14th January 2019 at 10:16 AM.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 12:12 PM   #2258
Stacyhs
Philosopher
 
Join Date: Mar 2016
Posts: 6,407
Numbers, to put it more succinctly: Vixen is wrong.
Stacyhs is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 12:39 PM   #2259
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
Originally Posted by Stacyhs View Post
Numbers, to put it more succinctly: Vixen is wrong.
Yes. But all the guilters are wrong.

The guilters' arguments are invalid. The guilters appear to be unable to accept facts that run counter to their pre-formed conceptions in this case.

Furthermore, the guilters appear to lack the subject-matter competence relevant to the case - that is, they appear to lack knowledge in subjects including but not limited to law and the Italian and ECHR judicial systems, DNA profiling and blood identification forensics, simple physics (how a stone breaks a window, how a person can climb a metal grill covering a window), and basic cell phone and antenna function.

To compensate for the above issues, the guilters resort to fabrications and obfuscations.

Last edited by Numbers; 14th January 2019 at 12:47 PM.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 01:06 PM   #2260
Stacyhs
Philosopher
 
Join Date: Mar 2016
Posts: 6,407
Originally Posted by Numbers View Post
Yes. But all the guilters are wrong.

The guilters' arguments are invalid. The guilters appear to be unable to accept facts that run counter to their pre-formed conceptions in this case.

Furthermore, the guilters appear to lack the subject-matter competence relevant to the case - that is, they appear to lack knowledge in subjects including but not limited to law and the Italian and ECHR judicial systems, DNA profiling and blood identification forensics, simple physics (how a stone breaks a window, how a person can climb a metal grill covering a window), and basic cell phone and antenna function.

To compensate for the above issues, the guilters resort to fabrications and obfuscations.
You'll get no argument from me there. But I do wonder how much of their ignorance is true ignorance or just willful blindness.
Stacyhs is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 01:25 PM   #2261
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
Originally Posted by Stacyhs View Post
You'll get no argument from me there. But I do wonder how much of their ignorance is true ignorance or just willful blindness.


Perhaps some of both.

But I do remember some make-believe from a guilter a few years ago. That poster claimed, IIRC, that the reason the Italian courts ruled that Amanda Knox's interrogation statements could be used against her for the calunnia charges but not for the murder/rape charges was because calunnia is considered a crime against honor in Italy, and thus a really serious crime.

However, as I learned more about the case, I found (as others no doubt knew) that the reason for the difference, as ruled by the Gemelli CSC panel in 2008, was that Knox had written a "defensive document", Memoriale 1, after the interrogation, referring to that interrogation. The CSC stated that therefore the defensive document could be used, and by implication its reference to the interrogation statements meant that those could be used against her for calunnia. Otherwise, the CSC ruled, Knox's defense rights had been violated under CPP Article 63 and thus the interrogation statements could not be used against her in the murder/rape case.

That CSC reasoning is quite different from that of the guilter poster's claim.

That CSC reasoning is also one important reason why I am confident that the ECHR will find that Italy violated Knox's Convention rights under Article 6.1 in conjunction with Article 6.3c. The reasoning in the Hellmann appeal court and Boninsegna court motivation reports reinforce my view.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 04:14 PM   #2262
Stacyhs
Philosopher
 
Join Date: Mar 2016
Posts: 6,407
Originally Posted by Numbers View Post
[/hilite]

Perhaps some of both.

But I do remember some make-believe from a guilter a few years ago. That poster claimed, IIRC, that the reason the Italian courts ruled that Amanda Knox's interrogation statements could be used against her for the calunnia charges but not for the murder/rape charges was because calunnia is considered a crime against honor in Italy, and thus a really serious crime.

However, as I learned more about the case, I found (as others no doubt knew) that the reason for the difference, as ruled by the Gemelli CSC panel in 2008, was that Knox had written a "defensive document", Memoriale 1, after the interrogation, referring to that interrogation. The CSC stated that therefore the defensive document could be used, and by implication its reference to the interrogation statements meant that those could be used against her for calunnia. Otherwise, the CSC ruled, Knox's defense rights had been violated under CPP Article 63 and thus the interrogation statements could not be used against her in the murder/rape case.

That CSC reasoning is quite different from that of the guilter poster's claim.

That CSC reasoning is also one important reason why I am confident that the ECHR will find that Italy violated Knox's Convention rights under Article 6.1 in conjunction with Article 6.3c. The reasoning in the Hellmann appeal court and Boninsegna court motivation reports reinforce my view.
That defamation is considered a criminal matter rather than a civil matter reveals much about the Italian mindset.
Stacyhs is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 04:45 PM   #2263
Vixen
Penultimate Amazing
 
Vixen's Avatar
 
Join Date: Apr 2015
Location: Moomin Valley
Posts: 14,671
Originally Posted by Stacyhs View Post
That defamation is considered a criminal matter rather than a civil matter reveals much about the Italian mindset.
Not the civil charge of defamation: Knox was charged with the US equivalent of 'obsruction of justice' (broadly speaking, interfering with the investigation of a case [cf Trump allegations]). As in the USA, in Italy, this is a serious criminal offence attracting a prison sentence of up to five years.

Writing horrible things about your neighbour on Facebook might be defamation but it'll be up to you to take it to court. The police took Knox to court and she was convicted and jailed for three years, bang to rights.
__________________
If man has no tea in him, he is incapable of understanding truth and beauty. ~ Japanese Proverb
Vixen is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 04:59 PM   #2264
Vixen
Penultimate Amazing
 
Vixen's Avatar
 
Join Date: Apr 2015
Location: Moomin Valley
Posts: 14,671
Originally Posted by Numbers View Post
Here are two rather odd and absurd guilter comments in the context of the ECHR case Knox v. Italy, which was Communicated to Italy on 29 April 2016, and is awaiting judgment:

1. “It says: 'power to decide'. In other words, the onus is still on the party to make an application [for the court to decide on] if it inadvertently cites the wrong Article or wants to add further complaints.”

Comment: Of course an individual party claiming a violation of the Convention must lodge an application to the ECHR in order for that international human rights court to judge the resulting case. And for the case Knox v. Italy, the application was lodged with the ECHR on November 24, 2013, as stated in the text of the Communication to Italy. So while the guilter comment is true in general, any implication by the guilters that there has not been an application lodged with the ECHR in the case Knox v. Italy is false and absurd.

2. “However, we are getting ahead of ourselves as the case hasn't even reached admissible stage and it is now in the sixth year .”

Comment: This statement is perhaps more absurd than the first one. Except for applications seeking “interim measures” – that is, when there is a claim of urgency due to a perceived immediate threat to an applicant's life, health, or extradition to a non-Council of Europe state – the ECHR moves slowly because of its considerable backlog of cases. As of 30 November 2018, the ECHR reports 57,550 applications pending before a judicial formation (ECHR court configuration).

As examples of the time required for an ECHR judgment on an application to be published, here are the significant milestone dates for three recent ECHR judgments and the known ones for Knox v. Italy. From these three examples as well as others, it is clear that a span of about three years (perhaps plus or minus one year) between the Communication to the government of the respondent state until publication of the judgment is not unusual. Thus, one can be hopeful, but not certain, that the judgment in Knox v. Italy will be published in 2019.

Case # 65286/13
Application lodged--- 26 September 2013
Communicated-------- 17 December 2015
Judgment published-- 10 January 2019

Case # 12879/09
Application lodged--- 12 December 2008
Communicated-------- 25 March 2015
Judgment published-- 10 January 2019

Case # 20452/14
Application lodged--- 15 March 2014
Communicated-------- 23 August 2016
Judgment published-- 10 January 2019

Case # 76577/13 Knox v. Italy
Application lodged--- 24 November 2013
Communicated-------- 29 April 2016
Judgment published-- To Be Determined (2019?)

An additional absurdity in the guilter statement is the claim that “the case hasn't even reached admissible stage”. This comment reflects a fundamental misunderstanding or misrepresentation of how the ECHR proceeds in its review of cases. Since the ECHR generally conducts a “joint examination of admissibility and merits” in accordance with its Rule 54A (see below), there is generally no “admissible” stage. A repetition of information previously posted in this forum follows.

The ECHR procedure after an application is received is to first conduct a preliminary review of admissibility after receipt of the application, and to decide immediately that the application is inadmissible if it does not pass the preliminary review.

If the application satisfies the preliminary review for admissibility for at least one claim, and after the ECHR requests and receives any additional information it needs from the applicant to answer its initial questions regarding the facts, the application consisting of a recitation of the relevant facts and the preliminarily admissible claims is Communicated to the respondent state, with questions addressed to the state regarding the claims, and any additional requests to the state and applicant for information on the facts.

In the procedure applicable before 1 January 2019, the state had 16 weeks after the publication of the Communication to file any claim that the application or any part of it was inadmissible. Any such claim is forwarded to the applicant for comment. The ECHR evaluates any claim of inadmissibility by the state and may also decide on its own motion of any inadmissibility of part or all the application at any point prior to judgment.

The responses from the respondent state and applicant received by the ECHR are then forwarded by it to the opposing sides for comments, which are given in documents called pleadings. The ECHR may then formulate additional questions for the parties. There may be any number of rounds of this procedure.

When the ECHR is fully satisfied that it has the facts required to reach judgment on the remaining admissible part of the application, it will, in accordance with its work load and priorities, reach a judgment and publish the judgment. The judgment will include a decision on the admissibility of each claim of a violation of the Convention and a judgment of the merits of each admissible claim.

If the ECHR decides that an applicant claim is inadmissible, no judgment follows the decision for that claim. However, if the ECHR decides that an applicant claim is admissible, the judgment of that claim immediately follows the decision for that claim. An ECHR decision that a claim is admissible means that the ECHR will go on to judge the merit of the claim's allegation of a violation of the Convention. Thus, for an admissible claim, the ECHR will find that there was a violation of the Convention or that there was no violation of the Convention. The ECHR will sometimes instead find that it is not necessary to judge the claim because it is redundant in light of the judgment of another claim in the case.

Thus, Knox v. Italy has passed the preliminary review of admissibility, since it has been Communicated to Italy, and is assigned to a chamber, the ECHR's First Section. The published judgment will contain the ECHR's final decision on the admissibility and final judgment on the merits of each claim of a violation of the Convention in the case.

Source: https://www.echr.coe.int/Pages/home....texts/rules&c=
PDF: Rules of the Court; See Rule 47, 49, 52, 54, 54A; relevant excerpts follow.

Rule 47 – Contents of an individual application
1. An application under Article 34 of the Convention shall be made on the application form provided by the Registry, unless the Court decides otherwise. It shall contain all of the information requested in the relevant parts of the application form and set out
....
(e) a concise and legible statement of the facts;
(f) a concise and legible statement of the alleged violation(s) of the Convention and the relevant arguments; and
(g) a concise and legible statement confirming the applicant’s compliance with the admissibility criteria laid down in Article 35 § 1 of the Convention.

Rule 49 – Individual applications
1. Where the material submitted by the applicant is on its own sufficient to disclose that the application is inadmissible or should be struck out of the list, the application shall be considered by a single-judge formation unless there is some special reason to the contrary.

Rule 52 – Assignment of applications to the Sections
1. Any application made under Article 34 of the Convention shall be assigned to a Section by the President of the Court, who in so doing shall endeavour to ensure a fair distribution of cases between the Sections. {Knox v. Italy is assigned to the First Section of the ECHR.}

Rule 54 – Procedure before a Chamber
1. The Chamber may at once declare the application inadmissible or strike it out of the Court’s list of cases. The decision of the Chamber may relate to all or part of the application.
2. Alternatively, the Chamber or the President of the Section may decide to
(a) request the parties to submit any factual information, documents or other material considered by the Chamber or its President to be relevant;
(b) give notice of the application or part of the application to the respondent Contracting Party and invite that Party to submit written observations thereon and, upon receipt thereof, invite the applicant to submit observations in reply;
(c) invite the parties to submit further observations in writing.

Rule 54A – Joint examination of admissibility and merits
1. When giving notice of the application to the respondent Contracting Party pursuant to Rule 54 § 2 (b), the Chamber may also decide to examine the admissibility and merits at the same time in accordance with Article 29 § 1 of the Convention. The parties shall be invited to include in their observations any submissions concerning just satisfaction and any proposals for a friendly settlement. The conditions laid down in Rules 60 and 62 shall apply, mutatis mutandis. The Court may, however, decide at any stage, if necessary, to take a separate decision on admissibility.
2. If no friendly settlement or other solution is reached and the Chamber is satisfied, in the light of the parties’ arguments, that the case is admissible and ready for a determination on the merits, it shall immediately adopt a judgment including the Chamber’s decision on admissibility, save in cases where it decides to take such a decision separately.

The challenge was to your claim that the ECHR can decide to add its own views as to what Article/Law has been broken and amend the case accordingly. For example, someone forget to quote Article 3 and a judge thinks they could have done. No, it can't. Everything to be legally decided on must be pleaded. Sure, a party can apply to amend the claim to add the missing section/article. The court cannot find a party guilty of - say - Article 3, if it was never pleaded in the first place, as you were arguing.

You'll note in a criminal court each of the barristers after their closing submissions must plead that the defendant be found guilty of XYZ, or alternatively, found not guilty of XYZ. Without a plea the court has no jurisdiction to decide anything.

Secondly, truth is, whilst the application may have been 'accepted' as being a prima facie application to the ECHR insofar it quotes the relevant Article/s and fulfils the requirement of the parties' names, court case, reference number, date and particulars, this is not at all the same as finding the application meets admissibility criteria and therefore gets listed for a hearing.

What the next stage involves is the court reviewing the application and if not yet satisfied, requesting further information/documents/copies of judgment transcripts, etc.

In the Knox case, it wrote to Dalla Vedova demanding more details and as of 2016 IIRC it is still waiting.

As you know, it likely falls at the first hurdle of not having pursued the complaint initially through the correct channels and allowed the Italian Court to give Dalla Vedova's client redress to her claim she was assaulted and abused by the police. Under Italian protocol, he had a duty to do so, but failed to lodge any complaint at the time.
__________________
If man has no tea in him, he is incapable of understanding truth and beauty. ~ Japanese Proverb
Vixen is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 04:59 PM   #2265
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
Originally Posted by Stacyhs View Post
That defamation is considered a criminal matter rather than a civil matter reveals much about the Italian mindset.
Calunnia is an Italian criminal charge of knowingly making a false accusation to a police or judicial authority.

Defamation is defined as a criminal charge but also as a civil tort under Italian law. It is defined as damaging the reputation of another person by a communication, in particular through the media. It is thus different from calunnia and has different penalties.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 05:54 PM   #2266
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
This statement from a guilter is a collection of one misrepresentation or lie after another and is a really hilarious collection of absurdities:

"1. The challenge was your claim that the ECHR can decide to add its own views as to what Article/Law has been broken and amend the case accordingly. 2. For example, someone forget to quote Article 3 and a judge thinks they could have done. No, it can't. Everything to be legally decided on must be pleaded. Sure, a party can apply to amend the claim to add the missing section/article. 3. The court cannot find a party guilty of - say - Article 3, if it was never pleaded in the first place, 4. as you were arguing.

5. You'll note in a criminal court each of the barristers after their closing submissions must plead that the defendant be found guilty of XYZ, or alternatively, found not guilty of XYZ. Without a plea the court has no jurisdiction to decide anything.

6. Secondly, truth is, whilst the application may have been 'accepted' as being a prima facie application to the ECHR insofar it quotes the relevant Article/s and fulfils the requirement of the parties' names, court case, reference number, date and particulars, this is not at all the same as finding the application meets admissibility criteria and therefore gets listed for a hearing.

7. What the next stage involves is the court reviewing the application and if not yet satisfied, requesting further information/documents/copies of judgment transcripts, etc.

8. In the Knox case, it wrote to Dalla Vedova demanding more details and as of 2016 IIRC it is still waiting.

9. As you know, it likely falls at the first hurdle of not having pursued the complaint initially through the correct channels and allowed the Italian Court to give Dalla Vedova's client redress to her claim she was assaulted and abused by the police. Under Italian protocol, he had a duty to do so, but failed to lodge any complaint at the time."

Well, I think I've found 9 misrepresentations, fabrications, or lies in the post. I don't know if that's a record or not.

For entertainment or even education, here are some comments on these misrepresentations, fabrications, or lies.

1. This is not my argument; it is my reporting - quoting - the case-law of the ECHR. Guilters may not like the case-law, but it is there.

2. The ECHR, in its case-law, claims to be the master of the facts and of the law - meaning characterization of the law to be addressed based on the facts presented. These are to be understood as the real, empirically verifiable facts of a case, not legal fictions. This is actually an ancient principle of law, jura novit curia (aka iura novit curia), which does not apply to all courts, but does apply to the ECHR and other international courts. From Wikipedia: "Iura novit curia is a Latin legal maxim expressing the principle that "the court knows the law", i.e., that the parties to a legal dispute do not need to plead or prove the law that applies to their case. .... Iura novit curia means that the court alone is responsible for determining which law applies to a particular case, and how. The court applies the law ex officio, that is, without being limited to the legal arguments advanced by the parties.... Iura novit curia is widely applied by international courts as a general principle of law."

3. There is another misunderstanding or obfuscation here, since the ECHR never finds anyone or any country guilty of anything. Its functions somewhat resemble, but are not identical to, a civil court. It is an international human rights court and its functions are defined by the European Convention on Human Rights. One of its functions in an individual case - when the evidence convinces it to be true - is to declare that a respondent state has violated an article of the Convention.

4. Again, my quotations from the ECHR case-law are confused with an "argument". Does the poster not understand that the ECHR publishes judgements and decisions of cases brought before it, and the numbered paragraphs of the "Law" section within the text of the judgment constitute case-law? Or is this an attempt by the poster to confuse unwary readers?

5. The ECHR is not a criminal court, it is an international human rights court as defined under the Convention. Thus, the analogy makes no sense.

6. Well, this is a straight-forward falsehood. There being no finding of inadmissibility of the Communicated application Knox v. Italy, it is a case which will be examined by a Chamber of the ECHR on the admissibility and the merits of each allegation (complaint) within it. That is why the Country Profile for Italy lists it as a "Noteworthy Pending Case" on page 14. Perhaps the guilters never look at the available online sources cited in posts?

7. Information has already been gathered by the ECHR for the case Knox; it is in a queue awaiting examination by a Chamber of the ECHR for decisions on the admissibility of each complaint and judgment of the merits of each admissible complaint. There are probably about 800 cases just from Italy, and thousands from all the other Council of Europe states, also in that queue.

8. An obvious falsehood, simply an entertaining fabrication. There are time limits - deadlines - imposed on the parties to respond to ECHR requests for information. If the individual applicant (by means of her lawyer) does not respond to a request for information within this deadline (typically about 2 months), the application is struck from the ECHR's list of pending cases. And an application that is struck from the list does not appear in the Country Profile as a Noteworthy Pending Case.

9. Another obvious falsehood. For one thing, it misses that there are a minimum of five complaints of violation of the Convention in Knox v. Italy. Domestic remedies for these complaints were exhausted through the court process. This has been discussed extensively in posts on this forum; apparently guilters have not been paying attention. The ECHR case-law relating to exhaustion of remedy by court process is in, for example, Grinenko v. Ukraine.

Last edited by Numbers; 14th January 2019 at 05:56 PM.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 06:08 PM   #2267
Stacyhs
Philosopher
 
Join Date: Mar 2016
Posts: 6,407
Originally Posted by Vixen View Post
Not the civil charge of defamation: Knox was charged with the US equivalent of 'obsruction of justice' (broadly speaking, interfering with the investigation of a case [cf Trump allegations]). As in the USA, in Italy, this is a serious criminal offence attracting a prison sentence of up to five years.

Writing horrible things about your neighbour on Facebook might be defamation but it'll be up to you to take it to court. The police took Knox to court and she was convicted and jailed for three years, bang to rights.
Please cite evidence that calunnia is the "US equivalent of 'obsruction (sic) of justice' (broadly speaking, interfering with the investigation of a case [cf Trump allegations])."

I doubt this is accurate due to the fact that Knox has no criminal record in the US. Criminal convictions in another country are recognized by the US as long as they meet the criteria (i.e. the conviction is for something recognized as an equivalent crime in both countries.) As no one, including you, TJMK, or either PMF ever provided said public US criminal record, I'd say it's a pretty safe bet that it doesn't exist.


ETA: Did you get the "obstruction of justice" idea from TJMK? If so, did they cite evidence from any legal source or was it just another one of their uncited declarations?

Last edited by Stacyhs; 14th January 2019 at 06:14 PM.
Stacyhs is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 06:11 PM   #2268
Stacyhs
Philosopher
 
Join Date: Mar 2016
Posts: 6,407
Originally Posted by Numbers View Post
Calunnia is an Italian criminal charge of knowingly making a false accusation to a police or judicial authority.

Defamation is defined as a criminal charge but also as a civil tort under Italian law. It is defined as damaging the reputation of another person by a communication, in particular through the media. It is thus different from calunnia and has different penalties.
Thank you for noting the distinction, Numbers.
Stacyhs is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 06:12 PM   #2269
Vixen
Penultimate Amazing
 
Vixen's Avatar
 
Join Date: Apr 2015
Location: Moomin Valley
Posts: 14,671
Originally Posted by Numbers View Post
This statement from a guilter is a collection of one misrepresentation or lie after another and is a really hilarious collection of absurdities:

"1. The challenge was your claim that the ECHR can decide to add its own views as to what Article/Law has been broken and amend the case accordingly. 2. For example, someone forget to quote Article 3 and a judge thinks they could have done. No, it can't. Everything to be legally decided on must be pleaded. Sure, a party can apply to amend the claim to add the missing section/article. 3. The court cannot find a party guilty of - say - Article 3, if it was never pleaded in the first place, 4. as you were arguing.

5. You'll note in a criminal court each of the barristers after their closing submissions must plead that the defendant be found guilty of XYZ, or alternatively, found not guilty of XYZ. Without a plea the court has no jurisdiction to decide anything.

6. Secondly, truth is, whilst the application may have been 'accepted' as being a prima facie application to the ECHR insofar it quotes the relevant Article/s and fulfils the requirement of the parties' names, court case, reference number, date and particulars, this is not at all the same as finding the application meets admissibility criteria and therefore gets listed for a hearing.

7. What the next stage involves is the court reviewing the application and if not yet satisfied, requesting further information/documents/copies of judgment transcripts, etc.

8. In the Knox case, it wrote to Dalla Vedova demanding more details and as of 2016 IIRC it is still waiting.

9. As you know, it likely falls at the first hurdle of not having pursued the complaint initially through the correct channels and allowed the Italian Court to give Dalla Vedova's client redress to her claim she was assaulted and abused by the police. Under Italian protocol, he had a duty to do so, but failed to lodge any complaint at the time."

Well, I think I've found 9 misrepresentations, fabrications, or lies in the post. I don't know if that's a record or not.

For entertainment or even education, here are some comments on these misrepresentations, fabrications, or lies.

1. This is not my argument; it is my reporting - quoting - the case-law of the ECHR. Guilters may not like the case-law, but it is there.

2. The ECHR, in its case-law, claims to be the master of the facts and of the law - meaning characterization of the law to be addressed based on the facts presented. These are to be understood as the real, empirically verifiable facts of a case, not legal fictions. This is actually an ancient principle of law, jura novit curia (aka iura novit curia), which does not apply to all courts, but does apply to the ECHR and other international courts. From Wikipedia: "Iura novit curia is a Latin legal maxim expressing the principle that "the court knows the law", i.e., that the parties to a legal dispute do not need to plead or prove the law that applies to their case. .... Iura novit curia means that the court alone is responsible for determining which law applies to a particular case, and how. The court applies the law ex officio, that is, without being limited to the legal arguments advanced by the parties.... Iura novit curia is widely applied by international courts as a general principle of law."

3. There is another misunderstanding or obfuscation here, since the ECHR never finds anyone or any country guilty of anything. Its functions somewhat resemble, but are not identical to, a civil court. It is an international human rights court and its functions are defined by the European Convention on Human Rights. One of its functions in an individual case - when the evidence convinces it to be true - is to declare that a respondent state has violated an article of the Convention.

4. Again, my quotations from the ECHR case-law are confused with an "argument". Does the poster not understand that the ECHR publishes judgements and decisions of cases brought before it, and the numbered paragraphs of the "Law" section within the text of the judgment constitute case-law? Or is this an attempt by the poster to confuse unwary readers?

5. The ECHR is not a criminal court, it is an international human rights court as defined under the Convention. Thus, the analogy makes no sense.

6. Well, this is a straight-forward falsehood. There being no finding of inadmissibility of the Communicated application Knox v. Italy, it is a case which will be examined by a Chamber of the ECHR on the admissibility and the merits of each allegation (complaint) within it. That is why the Country Profile for Italy lists it as a "Noteworthy Pending Case" on page 14. Perhaps the guilters never look at the available online sources cited in posts?

7. Information has already been gathered by the ECHR for the case Knox; it is in a queue awaiting examination by a Chamber of the ECHR for decisions on the admissibility of each complaint and judgment of the merits of each admissible complaint. There are probably about 800 cases just from Italy, and thousands from all the other Council of Europe states, also in that queue.

8. An obvious falsehood, simply an entertaining fabrication. There are time limits - deadlines - imposed on the parties to respond to ECHR requests for information. If the individual applicant (by means of her lawyer) does not respond to a request for information within this deadline (typically about 2 months), the application is struck from the ECHR's list of pending cases. And an application that is struck from the list does not appear in the Country Profile as a Noteworthy Pending Case.

9. Another obvious falsehood. For one thing, it misses that there are a minimum of five complaints of violation of the Convention in Knox v. Italy. Domestic remedies for these complaints were exhausted through the court process. This has been discussed extensively in posts on this forum; apparently guilters have not been paying attention. The ECHR case-law relating to exhaustion of remedy by court process is in, for example, Grinenko v. Ukraine.

I think we are all well aware the ECHR is a tribunal that rules on Human Rights violations. The verdicts wil be 'upheld/successful' or 'dismissed/rejected'.

Nonetheless the basic rules of court direction appllies.

The parties are still expected to explain their case or defence by means of a skeleton argument with reference to relevant case law (name of the case is enough). It still has to be pleaded.

All a court or a tribunal does is hear the case. It is up to the claimant or respondent to put the case. The court makes a decision based on the options it has been given by both parties.

Yes, it can refer in its judgment to its own case law references but it cannot essentially make a decision on something that never was pleaded. Courts/tribunals do inadvertently do this from time to time, but it is an error of law which can be appealed on those grounds.
__________________
If man has no tea in him, he is incapable of understanding truth and beauty. ~ Japanese Proverb
Vixen is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 06:17 PM   #2270
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
To be clear, Knox was never charged with the equivalent of the US charge of "obstruction of justice", which is found at 18 USC Section 1503 and is defined as an act that "corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice."

See: https://www.law.cornell.edu/wex/obstruction_of_justice

Knox was convicted of calunnia - knowingly making a false accusation against someone (Lumumba) of a criminal act before police or a judge.

She had been charged with aggravated calunnia - calunnia committed with the aggravating circumstance of using the false accusation to cover-up another crime or someone else's criminal responsibility - against Lumumba.

She was charged with and acquitted of aggravated continuing calunnia against the police and Mignini for her statements, made on three occasions in the Massei court, and in each of her appeals up to the one to the Chieffi CSC panel, alleging mistreatment by the police during her interrogation on Nov. 5/6, 2007.

It's these court statements and appeals, btw, that constitute the exhaustion of a domestic remedy under ECHR case-law (Grinenko v. Ukraine). And, hilariously, although the guilters don't get this, the fact that Knox was charged with continuous aggravated calunnia for making those court statements and appeals show that these court statements and appeals constituted "official" complaints in accordance with Italian law. These statements and appeals were as much "official" complaints under Italian law as Knox's signed statements from the interrogation by the police and Mignini obtained by them on Nov. 6, 2007.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 06:37 PM   #2271
Stacyhs
Philosopher
 
Join Date: Mar 2016
Posts: 6,407
Italy has laws against obstruction of justice (Criminal Code, article 377). Knox was not charged with anything under Art. 377 but charged under Art. 368. Not even TJMK, in their comments regarding the Massei calunnia conviction, claims that calunnia is roughly the equivalent of "obstruction of justice".
Stacyhs is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 06:42 PM   #2272
Vixen
Penultimate Amazing
 
Vixen's Avatar
 
Join Date: Apr 2015
Location: Moomin Valley
Posts: 14,671
Originally Posted by Numbers View Post
To be clear, Knox was never charged with the equivalent of the US charge of "obstruction of justice", which is found at 18 USC Section 1503 and is defined as an act that "corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice."

See: https://www.law.cornell.edu/wex/obstruction_of_justice

Knox was convicted of calunnia - knowingly making a false accusation against someone (Lumumba) of a criminal act before police or a judge.

She had been charged with aggravated calunnia - calunnia committed with the aggravating circumstance of using the false accusation to cover-up another crime or someone else's criminal responsibility - against Lumumba.

She was charged with and acquitted of aggravated continuing calunnia against the police and Mignini for her statements, made on three occasions in the Massei court, and in each of her appeals up to the one to the Chieffi CSC panel, alleging mistreatment by the police during her interrogation on Nov. 5/6, 2007.

It's these court statements and appeals, btw, that constitute the exhaustion of a domestic remedy under ECHR case-law (Grinenko v. Ukraine). And, hilariously, although the guilters don't get this, the fact that Knox was charged with continuous aggravated calunnia for making those court statements and appeals show that these court statements and appeals constituted "official" complaints in accordance with Italian law. These statements and appeals were as much "official" complaints under Italian law as Knox's signed statements from the interrogation by the police and Mignini obtained by them on Nov. 6, 2007.

Knox was found guilty of the criminal charge of Calunnia (which is not at all equivalent to the USA civil tort of slander) and was sentenced to three years in prison for it. This was decided by a fair criminal trial, appeal and upheld by the Supreme Court.

In a totally separate case, Knox was later indicted for calunnia against several named police officers for allegedly falsely accusing them of assaulting her. She was found not guilty. IOW there is nothing for her to appeal against. She was charged, had a fair trial and she was acquitted. Full stop.

Boninsegna said there was a breach of human rights in that the police should not have been so nice to her or treated her in a maternal way (for example, hugging her for comfort).

Knox is claiming this judgment proves she was tortured under Artilce 3.

One thing courts take into account is materiality. Is it material some cop was over familiar and hugged her in misguided sympathy with a young woman in a foreign country?

Compare and contrast this with the Canadian woman who was repeatedly raped and abused by her captors whilst being held hostage in a a hostile country for six (?) years.


Seriously? Well, seriously?
__________________
If man has no tea in him, he is incapable of understanding truth and beauty. ~ Japanese Proverb
Vixen is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 07:33 PM   #2273
Stacyhs
Philosopher
 
Join Date: Mar 2016
Posts: 6,407
[quote=Vixen;12563894]

Boninsegna said there was a breach of human rights in that the police should not have been so nice to her or treated her in a maternal way (for example, hugging her for comfort).
Knox is claiming this judgment proves she was tortured under Artilce 3.
[quote]

Why am I not surprised that you fail to mention the other reasons the judge acquitted Kmox? Seriously? Well, seriously?

Quote:
There is not, hence, sufficient evidence that the events did not occur as Knox reported, as regards the police. But it is also plausible, given the dramatic context that has been revealed, that Knox was convinced or had the - reasonable - doubt of being the victim of an unjustly oppressive and abusive machinery, which she described - in a basic and embryonic but effective manner - at the March hearing, as regards the status of the Prosecutor, evidently thought to be the hierarchical instigator and the authority overseeing the police activity. The Prosecutor was believed by her to be, albeit mistakenly, the primary architect and the inspiration
behind her state of subjugation and submission. Hence it follows that, as regards this charge, the fact does not constitute an offense, since it is missing the subjective element [of knowing the innocence of the accused person], there being at most the possibility of [the defendant] accepting this eventuality [dolo eventuale], which is incompatible with the crime of calumny.

It can be, therefore, concluded that the chosen investigative practices induced
in the defendant the conviction, or the reasonable doubt, that she was being
subjected to a planned, oppressive and unfair investigative action - this also takes into account Knox’s definitive acquittal in the main criminal trial because she did not commit the crime of murder - in light of the overall way in which her interrogation was performed.

There is, therefore, an absence of the evidence to place beyond a reasonable
doubt that the events did not indeed occur as the girl related
and that she was fully aware of the non-involvement of the Prosecutor in the way the investigations concerning her were performed.
(Boninsegna MR)

ETA: The details of another case matter not a whit. But nice try.

Last edited by Stacyhs; 14th January 2019 at 07:35 PM.
Stacyhs is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 07:37 PM   #2274
Stacyhs
Philosopher
 
Join Date: Mar 2016
Posts: 6,407
I see Vixen has still failed to provide any evidence that calunnia is the equivalent to Obstruction of Justice...even broadly.
Stacyhs is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 07:46 PM   #2275
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
Guilter posts never stop being hilarious in their obvious falsehoods, material omissions, and misrepresentations.

Here's one:

"Knox was found guilty of the criminal charge of Calunnia (which is not at all equivalent to the USA civil tort of slander) and was 1. sentenced to three years in prison for it. 2. This was decided by a fair criminal trial, appeal and upheld by the Supreme Court.
....
3. Boninsegna said there was a breach of human rights in that the police should not have been so nice to her or treated her in a maternal way (for example, hugging her for comfort).

4. Knox is claiming this judgment proves she was tortured under Artilce 3."

1. The sentence was applied retroactively to prison time Amanda Knox had already served while on trial for charges of the murder/rape of Meredith Kercher, as well as a supposedly separate trial before the same courts the charge of aggravated calunnia against Diya (Patrick) Lumumba.

2. The verdict by the Hellmann appeal court provisionally convicting Knox of calunnia and finalized by the Chieffi CSC panel is indeed a large part of the facts of the ECHR case Knox v. Italy. The fairness of the trial is thus challenged under Article 6.1 (right to a fair trial) of the Convention, in conjunction with several specific guarantees of a fair trial under Article 6.3, as well as allegations under Article 3 (prohibition of inhuman or degrading treatment) and Article 8 (right of respect for private life).

3. The statement is false because it materially omits so much of the relevant text, even in summary, of the Boninsegna court motivation report, which maintains that there were several denials of Knox's defense rights during the interrogations of Nov. 5/6, 2007. In fact, the Boninsegna court motivation report references the Gemelli CSC panel finding that Knox's defense rights, guaranteed under Italian law CPP 63, were denied. Apparently, when convenient for their agenda, the guilters forget their argument that CSC decisions have an overriding judicial sanctity.

4. Again, there is the persistent guilter lie by exaggeration of the ECHR complaint by Knox, which, as stated above and in the ECHR Communication, as "Relying on Article 3 of the Convention, the applicant complains that the slaps on the head that she suffered (scappellotti) constituted inhuman and degrading treatment." Thus, Knox does not, and never has, claimed that she was subjected to torture.

With so many obvious lies, misstatements, and misrepresentations, it is clear that guilter posts simply have no credibility. One can only wonder why the guilters persist in such tactics.

Is it to convince the readers of their posts that indeed there are no credible guilter arguments and that there is a severe lack of intellectual honesty among the guilters?

Perhaps the guilters are attempting to show their contempt for the principles of the European Convention on Human Rights, which begins:

"The Governments signatory hereto, being members of the Council of Europe, Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10th December 1948;
....
Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration, Have agreed as follows: "
to the Articles and subsequent Protocols {amendments} of the European Convention on Human Rights.

Last edited by Numbers; 14th January 2019 at 08:02 PM.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 07:53 PM   #2276
Stacyhs
Philosopher
 
Join Date: Mar 2016
Posts: 6,407
"With so many obvious lies, misstatements, and misrepresentations, it is clear that guilter posts simply have no credibility. One can only wonder why the guilters persist in such tactics. Is it to convince the readers of their posts that indeed there are no credible guilter arguments and that there is a severe lack of intellectual honesty among the guilters?"

If so, they're doing a damn fine job of it.
Stacyhs is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th January 2019, 08:52 PM   #2277
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
Originally Posted by Stacyhs View Post
Thank you for noting the distinction, Numbers.
You're welcome.

But since you mention the Italian crime of defamation, which has had its share of criticism by international human rights as well as media organizations, there is an ECHR case, Sallusti v. Italy, like Knox v. Italy, designated a "Noteworthy Pending Case" in the Country Profile for Italy. In fact, its summary is on the same page 14 in the latest update of the Country Profile for Italy as is the summary for Knox v. Italy.

Sallusti v. Italy 22350/13 was lodged with the ECHR by the publication director of the newspaper Libero who was convicted of defamation by Italy. Sallusti alleges that his conviction for defamation was a violation of Convention Article 10 (right to freedom of expression). Comparing and contrasting some aspects of that case with Knox v. Italy 76577/13 will be informative.

1. Both cases were lodged with the ECHR in 2013: Sallusti on 18 March, Knox on 24 November. So the Sallusti case has been resident at the ECHR about 7 months longer than the Knox case.

2. Both cases were Communicated to Italy in 2016: Sallusti on 12 September, Knox on 29 April. So the Knox case passed preliminary admissibility about 5 months before the Sallusti case.

3. Judgment has not been published for either case to date (14 January 2019), and of course, neither has any decision of inadmissibility been published (and if it had, the case with such a decision would no longer be listed as pending).

4. In contrast to the Communication for Knox v. Italy, the text of which is about 7 pages long in English translation, the length of the Communication for Sallusti v. Italy (original in English) is less than about 1/2 of one page. This may represent the relative uniqueness of the Knox case and the desire of the ECHR to point out relevant facts of the judicial record to the Italian government.

5. In contrast to the Knox v. Italy Communication, the Sallusti v. Italy Communication asks Italy about the status of a specific draft Italian law relating to defamation. This is a reminder that the ECHR is not only concerned about the violation of Convention rights, but also seeks to have states interpret, and if necessary, modify, laws to conform with the principles of the articles of the Convention.

Here's the text of the Communication of Sallusti v. Italy:

"SUBJECT MATTER OF THE CASE

The applicant is a journalist and, at the material time, he was the director of the newspaper Libero. The application concerns his criminal conviction for defamation through the press (diffamazione a mezzo stampa) and for failure to conduct supervision of the content of the publication (omesso controllo sul contenuto dell’articolo diffamatorio).

QUESTION TO THE PARTIES

Has there been a violation of the applicant’s right to freedom of expression, and in particular of his right to impart information and ideas, contrary to Article 10 of the Convention? In particular - considering that the applicant was sentenced to one year and two months of imprisonment, coupled with the payment of a fine and the payment of compensation - were the sanctions imposed proportionate in their nature and severity (see, among many authorities, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, ECHR 2004‑XI and Fatullayev v. Azerbaijan, no. 40984/07, 22 April 2010)?

Information Sought

The Government are invited to provide information on the current status of legislative proposals related to sentencing in the sphere of defamation, with particular reference to Draft Law n. 1119-B."
___
To the above analysis, I add the conclusion that the length of time that has passed since the communication to Italy of Knox v. Italy and likewise that of Sallusti v. Italy represents the normal slowness of the ECHR system. It does not, contrary to the false claims of the guilters, indicate any problem with either the admissibility or merits of Knox v. Italy.

Last edited by Numbers; 14th January 2019 at 08:59 PM.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old Yesterday, 12:18 AM   #2278
Stacyhs
Philosopher
 
Join Date: Mar 2016
Posts: 6,407
"To the above analysis, I add the conclusion that the length of time that has passed since the communication to Italy of Knox v. Italy and likewise that of Sallusti v. Italy represents the normal slowness of the ECHR system. It does not, contrary to the false claims of the guilters, indicate any problem with either the admissibility or merits of Knox v. Italy."

This would be a logical conclusion.
Stacyhs is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old Yesterday, 01:16 AM   #2279
Numbers
Illuminator
 
Join Date: Sep 2014
Posts: 4,532
Here's another example of those hilarious and absurd posts from the guilters.

"1. I think we are all well aware the ECHR is a tribunal that rules on Human Rights violations. 2. The verdicts wil be 'upheld/successful' or 'dismissed/rejected'.

3. Nonetheless the basic rules of court direction appllies.

4. The parties are still expected to explain their case or defence by means of a skeleton argument with reference to relevant case law (name of the case is enough). It still has to be pleaded.

5. All a court or a tribunal does is hear the case. It is up to the claimant or respondent to put the case. The court makes a decision based on the options it has been given by both parties.

6. Yes, it can refer in its judgment to its own case law references but it cannot essentially make a decision on something that never was pleaded. 7. Courts/tribunals do inadvertently do this from time to time, but it is an error of law which can be appealed on those grounds."

There are seven errors, misstatements, or fabrications in the above. The impression is that the poster has not to date followed the discussion, including quotations from ECHR case-law, or independently done any reading of relevant ECHR case-law.

1. In error in the sense that the ECHR rules specifically on violations of the articles, including articles of the protocols [amendments] of the European Convention on Human Rights, as the ECHR interprets that Convention.

2. In error in that the declarations of the ECHR are framed in the following style, with minor variations, after the ECHR's reasoning in the section "The Law" on each specific admissible complaint: "There has accordingly been a violation of Article NNN of the Convention" or "There has accordingly been no violation of Article NNN of the Convention", where NNN is meant as a symbol for the article number of the Convention relevant to the complaint. The specific decisions on admissibility are declared, and the specific judgments of merit (violation or no violation) for each complaint are called out in a summarized conclusion under the heading "For These Reasons, The Court".

3. The only court directions that apply to the ECHR are those of the ECHR's Rules of the Court, which are derived from the Convention and the ECHR's interpretation of the Convention. The ECHR provides the text of its Rules in a PDF accessible by links from its web site.

4. The individual applicant is required to make (at least) one complaint of a violation under the Convention. As stated by the ECHR in its case-law and Rules, each complaint consists of the alleged facts of the case from which the alleged violation may be understood in substance and a legal argument essentially supporting the violation; this may be merely identifying the most relevant article of the Convention. The "relationship between the factual and legal components of a complaint" is based upon ECHR's case-law that "a complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on" (as stated in the ECHR case Guerra and Others v. Italy, 19 February 1998, § 44). The respondent state is free to respond with its own allegations of the facts and its own legal grounds or arguments. The ECHR will insist on receiving credible documentation that supports the facts alleged by both the applicant and the state.

5. The ECHR does not simply judge a case by examining the information or evidence supplied by each side. It freely examines external evidence from, including but not limited to, other Council of Europe organizations, United Nations organizations, and other public or private international organizations. Under the Convention, the ECHR may demand, if it sees fit to gather additional information, that the respondent state assist it in conducting an investigation to determine the facts. It sometimes will also survey the laws of the states of the CoE or other democratic states to seek an interpretation. Of course, the ECHR strictly follows the precedent of its case-law, expanding on precedent as it judges to be required for a particular case. In some cases, the ECHR judges the conformity with ECHR case-law and the Convention of a state's law or the state's interpretation of the state's law.

6. As explained in earlier posts, the ECHR allows itself, under its interpretation of the Convention as found in its case-law, for any complaint, to decide what article of the Convention is appropriate to be relied upon to formulate a judgment, based upon the facts of that complaint. This "jura novit curia" principle is common in international law, according to Wikipedia.

7. There are no appeals allowed in the ECHR for cases judged by a single judge, committee (3 judges), or Grand Chamber (17 judges). Cases judged by a Chamber may be appealed within a time limit (3 months) by either the applicant or the state or both to a referral panel of 5 judges to be heard by a Grand Chamber; however, referrals are only granted in exceptional cases.

Last edited by Numbers; Yesterday at 01:47 AM.
Numbers is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old Yesterday, 08:22 AM   #2280
Bill Williams
Penultimate Amazing
 
Join Date: Nov 2011
Posts: 13,662
Originally Posted by Vixen View Post
Knox is claiming this judgment proves she was tortured under Artilce 3.
No wonder people actually read what Knox's lawyers said, instead of your tripe. No one has said she claimed to be tortured except you! The ONLY people who say this are the guilters......

Who....

Are....

Lying.

Neither she nor her lawyers said she'd been tortured. That you need to use this word to embellish says all anyone needs to hear about your case.

Your case is based on lies. It's, then, no wonder that all but one of the guilter hate-sites have closed, closed now that we are almost four years from the acquittal.

Anyone still confused about whether or not Knox and Sollecito were exonerated? Maybe you'll listen to the original prosecutors who (in Dec 2017) conceded.....

__________________
In a thread titled "Who Killed Meredith Kercher?", the answer is obvious. Rudy Guede and no one else.
Bill Williams is online now   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Reply

International Skeptics Forum » General Topics » Trials and Errors

Bookmarks

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Forum Jump


All times are GMT -7. The time now is 10:17 AM.
Powered by vBulletin. Copyright ©2000 - 2019, Jelsoft Enterprises Ltd.

This forum began as part of the James Randi Education Foundation (JREF). However, the forum now exists as
an independent entity with no affiliation with or endorsement by the JREF, including the section in reference to "JREF" topics.

Disclaimer: Messages posted in the Forum are solely the opinion of their authors.