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

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Old 14th January 2020, 04:50 PM   #801
Numbers
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Originally Posted by Numbers View Post
Bill, I'm taking a short time to give a short answer.

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

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

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

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


*I am not sure whether, or to what degree, prosecutors have legal impunity from private lawsuits in Italy. Mignini was censored by the Superior Council of the Judiciary for depriving Sollecito of legal counsel without judicial authority, contrary to law, as I recall.
I found the section of the Marasca CSC panel MR dealing with the extinction of charge B, carrying the knife.

I am a little surprised I was able to remember so much about this relatively unimportant detail. Now, if only I can remember where I put my keys....

From the Marasca CSC panel motivation report:


Quote:
...the Public Minister, in the person of Deputy Prosecutor General Dr. Stefano Maria Pinelli, who concluded asking for the annulment without referral because of expiration of the statute of limitations concerning charge B) {carrying the knife} …. [page 1]


First, it should be noted that, regarding the contravention of charge B), relating to the illegal carrying of the knife indicated in the charge, we have now passed the statute of limitations, from the date of its commission.

There is no choice other than to accept it, without there being evidence of more favourable reasons for acquittal based on merit, keeping in mind Article 129, second section, Italian Code of Criminal Procedure, all the more in light of the pronouncements of guilt in the first instance trial and the second Assizes Appeal Court.

Moreover, according to undisputed guidance of this Court of Legitimacy the formula of acquittal on merit prevails on the declaration of impossibility to proceed due to the statute of limitations only if there is detectable, with a simple analysis of the evidence, total absence of proof of guilt borne by the accused or rather than positive proof of innocence, and not also in the case of mere contradiction or lack of evidence that requires a pondered consideration between opposing findings (Sec. 6, n. 10284 of 22/01/2014, Culicchia, Rv . 259,445). [Section 5, page 32]
So there could only be an acquittal on this charge, because it was already past the statute of limitations, if there was a total absence of proof of guilt OR positive proof of innocence regarding the charge, according to CSC guidance. This appears to me to be the lazy way of avoiding any analysis of the evidence. But extinction has the same legal effect as acquittal for charge B.

BTW, I found an apparent mis-translation in the document, as noted by the strike-out.

Here's the original Italian text of the last paragraph in the quote:

Del resto, secondo indiscusso insegnamento di questa Corte di legittimità la formula di proscioglimento nel merito prevale sulla dichiarazione di improcedibilità per intervenuta prescrizione soltanto nel caso in cui sia rilevabile, con una mera attività ricognitiva, l'assoluta assenza della prova di colpevolezza a carico dell'imputato ovvero la prova positiva della sua innocenza, e non anche nel caso di mera contraddittorietà o insufficienza della prova che richiede un apprezzamento ponderato tra opposte risultanz ....

Google translation:

Moreover, according to the undisputed teaching of this Court of legitimacy, the acquittal formula on the merits takes precedence over the declaration of inadmissibility for intervening prescription only in the case in which the absolute absence of proof of guilt against the accused or the positive proof of his innocence, and not even in the case of mere contradictory or insufficient proof which requires a weighted appreciation between opposite results.

The Italian "ovvero" is translated as "or", "that is", "or rather", and "or else" by Google translate. Any of these translations would make more sense in context instead of the "rather than" supplied by the translator (IMO).

Now, in terms of an appeal of the extinction, that is not possible in this specific case because the verdict is a final one from the CSC. And there could be no revision, because that is only for convictions.

But, had the extinction verdict been from a first-instance or appeal court, I believe it could have been appealed by the accused seeking an acquittal on the charge.
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Old 14th January 2020, 04:51 PM   #802
Stacyhs
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Originally Posted by whoanellie View Post
I would be very interested to know whether post-1992 reforms (reforms of the reforms?) changed the degrees of acquittal described by Pizzi and Marafioti. Italian law has concepts that are very foreign to American sensibilities. One thing is clear to me, however, the concept of 'degrees of acquittal' is or was baked into Italian law in a way that is, indeed, 'counter-intuitive' to me.
All you need to know is that a person acquitted of a crime is not considered 'as innocent' as before the trial...at least according to Vixen.
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Old 14th January 2020, 04:55 PM   #803
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Originally Posted by whoanellie View Post
Numbers, do you not realize that I quoted the same passage from Pizzi and Marafioti in post #769 above????? Perhaps it is not I who is failing to read posts carefully.
My sincere apologies, I missed that entirely.
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Old 14th January 2020, 05:21 PM   #804
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Originally Posted by Numbers View Post
My sincere apologies, I missed that entirely.
I accept your apology as I am biting my tongue.

Last edited by whoanellie; 14th January 2020 at 05:26 PM.
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Old 14th January 2020, 05:26 PM   #805
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Originally Posted by Stacyhs View Post
All you need to know is that a person acquitted of a crime is not considered 'as innocent' as before the trial...at least according to Vixen.

Vixen is a firm believer in those pesky 'judicial facts' which is another concept that offends my delicate American sensibilities.
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Old 14th January 2020, 05:31 PM   #806
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Originally Posted by whoanellie View Post

Vixen is a firm believer in those pesky 'judicial facts' which is another concept that offends my delicate American sensibilities.
Only when they suit her purpose.
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Old 14th January 2020, 05:38 PM   #807
LondonJohn
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Originally Posted by whoanellie View Post

Vixen is a firm believer in those pesky 'judicial facts' which is another concept that offends my delicate American sensibilities.


Well in a very real sense, "judical facts" are all that can ever come out of practically any judicial process, even in US courts. No court can ever reach a level of metaphysical knowledge of factual guilt (or, for that matter, factual non-guilt).

But Italian courts appear to take things to a different level, by continuing to believe that their role is to discover "the truth" behind any crime - when all their job is now is to decide whether there is evidence to prove BARD the guilt of the accused person being tried by them.
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Old 14th January 2020, 06:47 PM   #808
whoanellie
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Originally Posted by LondonJohn View Post
Well in a very real sense, "judical facts" are all that can ever come out of practically any judicial process, even in US courts. No court can ever reach a level of metaphysical knowledge of factual guilt (or, for that matter, factual non-guilt).

But Italian courts appear to take things to a different level, by continuing to believe that their role is to discover "the truth" behind any crime - when all their job is now is to decide whether there is evidence to prove BARD the guilt of the accused person being tried by them.
For Vixen there is no higher truth than 'judicial facts'.
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Old 14th January 2020, 07:06 PM   #809
Bill Williams
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Originally Posted by LondonJohn View Post
But Italian courts appear to take things to a different level, by continuing to believe that their role is to discover "the truth" behind any crime - when all their job is now is to decide whether there is evidence to prove BARD the guilt of the accused person being tried by them.
This is a major theme of the Marasca-Bruno report, found at length in Section 7. Indeed, M-B refers to this "debate" as part of the (legal?) "culture wars", probably a war between those who wish there'd been no movement at all from the Inquisatorial system, against those who wish that Italian law would complete the transition to an Adversarial one....

Section 7 speaks for itself, should the judge confer the concept of "expert of the expert" on to him/herself?:
Quote:
7. The second criticism that must be raised against the ruling under appeal
introduces to the central theme of the judgment, or rather the legal value
attributable to the scientific evidence, with particular reference to the genetic
investigations, acquired in violation of the rules established by international
protocols.


This question, specific as it is, forms part of the lively theoretical debate on the
relationship between scientific evidence and criminal trials, in search of a
problematic balance between a theory – not insensitive to certain suggestions of
interpretive stances from beyond our borders – that tends to put an increasing
amount of weight on the contributions of science, even if not validated by the
scientific community; and a theory that insists on the primacy of law and postulates
that, in deference to the rules of criminal procedure itself, only those scientific
experiments validated according to commonly accepted methodological canons may
be allowed to enter.


This cultural debate, while respecting the principle of freely-held opinion of the
judge, also proposes to critically reexamine the now-obsolete and dubiously credible
notion of the judge as “peritus peritorum” [expert of experts]. Indeed, this old
maxim expresses a cultural model that is no longer current
, and is in fact decidedly
anachronistic, at least to the extent that it expects to assign to the judge a real
ability to master the flow of scientific knowledge that the parties pour into the
proceeding; a more realistic formulation, by contrast, sees the judge as wholly
oblivious to those contributions, which are the fruit of a scientific training that he or
she does not, need not, and cannot possess. This is all the more true with regard to
genetic science, whose complex methods require a specific training in forensic
genetics, chemistry, and molecular biology, drawing upon a knowledge base that is
light-years away from the purely humanistic and juridical education of a magistrate.

.................................................. ............

This Court considers that this delicate problem, inasmuch as the present case is
concerned, must find its solution in the general rules that inform our legal system
and not, indeed, aliunde [from elsewhere], in an abstract insistence on the primacy
of science over law or vice-versa. Scientific proof cannot, in fact, aspire to an
unconditional credit of self-referential trustworthiness in the trial setting, by the very
fact that a criminal trial renounces all notion of legal proof. Furthermore, it is known
to all that there does not exist [only] one single science, bearer of absolute truths
immutable over time, but rather many sciences or pseudosciences, including those
that are “official” and those that have not been validated by the scientific
community, insofar as they are expressions of research methods that are not
universally recognised.
__________________
In a thread titled "Who Killed Meredith Kercher?", the answer is obvious. Rudy Guede and no one else.

Last edited by Bill Williams; 14th January 2020 at 07:08 PM.
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Old 14th January 2020, 07:11 PM   #810
Stacyhs
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Originally Posted by whoanellie View Post
For Vixen there is no higher truth than 'judicial facts'.
Even actual facts.

The Italian Supreme Court definitively acquitted a man for raping a woman because it found that she had to have consented because he would not be able to remove her tight jeans without her help. That is a 'judicial fact'. Not even a subsequent Supreme Court agreed with that bit of nonsense when another accused rapist tried using that defense. But the initial 'judicial fact' still stands in that case. I wonder if a certain poster accepts that as an 'actual fact', too.
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Old 14th January 2020, 07:43 PM   #811
Numbers
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Originally Posted by whoanellie View Post
Here is another citation which states that an accused can appeal an acquittal (not a dismissal):

Taken from page 21.
M. Bolognari, '
Quote:
The Appeal in the Italian Criminal Legal System: Legislative Reforms and Case Law
'

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

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

This is, I'm guessing, not the highest profile legal journal.
This paper is really exciting in that it details recent changes - as recent as 2018 - in Italian procedural law that should, in theory, help make the Italian judicial system more fair as well as more efficient.

I haven't read all the paper, but I will address here the information relevant to your argument(s) concerning whether or not there is currently a hierarchy to the appeals formulas and whether or not an acquittal can be appealed by the accused.

First, here is a relevant excerpt; I have copied and pasted somewhat more than in your post:

Quote:
3.1. The Form of the Appeal

The Italian Code of Criminal procedure states that both the accused and the public prosecutor are entitled to appeal a judgement18. The Legislative Decree 11/2018 reduced the cases in which these subjects may lodge an appeal. In particular, whereas before the legislative reform the conviction could be appealed by both the accused and the public prosecutor, now such a possibility is accorded only to the accused, while the prosecutor may lodge an appeal against such a decision only when it has established the presence of an aggravating circumstance with special effect or of a penalty of different kind from that provided for the crime (Art. 593 para. 1 Code). Conversely, the power to appeal a judgement of acquittal, which before the reform was accorded without distinctions to both the parties, is now generally recognized to the public prosecutor. Even the accused may lodge an appeal against an acquittal, except when such a decision has ascertained that the criminal act did not occur or the accused did not commit it (Art. 593 para. 2 Code)19.

....

The Court of Appeal review is bound by the subsections of the first-instance decision to which the arguments refer (Art. 597 para. 1 Code), but the Court of Appeal can decide independently from such arguments. However, if only the accused appeals, the Court of Appeal cannot reform the judgment of first-instance in a less favorable way for him or her: for example, it cannot impose a more severe penalty or revoke benefits. This is the so called “prohibition of reformatio in pejus” (Art. 597 para. 3 Code).

18 Law 103/2017 has reintroduced the possibility for the accused and the public prosecutor to lodge an appeal against judgement of no grounds to proceed, that was repealed by Law 46/2006

19 Moreover, it must be highlighted that the Legislative Decree 11/2018 has also intervened on another aspect that concerns the legitimacy to appeal. Indeed, the reform has excluded the public prosecutor from the possibility to lodge an incidental appeal.
So, this is all interesting. Of course, since my source book on the CPP is from 2014, it's not a reliable check on the above 2018 revision of CPP Article 593. To understand and to verify in detail the comments within the paper, the first step is to obtain a current text of the actual Italian document*:


Quote:
Articolo 593 Codice di procedura penale
(D.P.R. 22 settembre 1988, n. 477)
[Aggiornato al 09/08/2019]
Casi di appello

1. Salvo quanto previsto dagli articoli 443, comma 3, 448, comma 2, 579 e 680, l’imputato può appellare contro le sentenze di condanna mentre il pubblico ministero può appellare contro le medesime sentenze solo quando modificano il titolo del reato o escludono la sussistenza di una circostanza aggravante ad effetto speciale o stabiliscono una pena di specie diversa da quella ordinaria del reato.

2. Il pubblico ministero può appellare contro le sentenze di relative. L’imputato può appellare contro le sentenze di proscioglimento emesse al termine del dibattimento, salvo che si tratti di sentenze di assoluzione perché il fatto non sussiste o perché l’imputato non lo ha commesso.

3. Sono in ogni caso inappellabili le sentenze di condanna per le quali è stata applicata la sola pena dell'ammenda e le sentenze di proscioglimento relative a contravvenzioni punite con la sola pena dell’ammenda o con pena alternativa.
Google translation (with my help):

1. Without prejudice to the provisions of articles 443, paragraph 3, 448, paragraph 2, 579 and 680, the accused can appeal against judgments of conviction while the public prosecutor can appeal against the same judgments only when they modify the title of the crime or exclude the existence of an aggravating circumstance with special effect or establish a penalty of a different kind from the ordinary crime.

2. The public prosecutor may appeal against judgments of dismissal. The accused may appeal against judgments of dismissal issued at the end of the trial, unless it is a judgment of acquittal because the fact does not exist or because the accused did not commit it.

3. In any case, the judgment of conviction for which only the penalty of a fine has been applied and the judgment of dismissal which is punished with the sole penalty of a fine or with an alternative punishment are unappealable.


Comments: Paragraph 2 indeed allows the accused who has been dismissed to appeal and to seek a better dismissal. This indeed includes acquittals under 3 of the acquittal formulas; however, those who have been acquitted under the formulas "the fact does not exist" (that is, the crime did not happen, which includes the case where the legal factual elements of the crime were not present) or "the accused did not commit the crime".

Translation note: The Italian "proscioglimento" = dismissal and "assoluzione" = acquittal both occur in the above for a reason. Dismissal is the more general term; it includes acquittal as well as prosecution should not have begun or started (CPP Article 529) and extinction due to statute of limitations (CPP Article 531).

Thus, an accused who was acquitted with one of these formulas: 1) "the act was not an offense under the law", 2) "the act was committed with justification or exemption", and 3) "the act was committed by a person who was not imputable (not of mental capacity)" are allowed to appeal their acquittal to one of the unappealable formulas.

That right of appeal makes sense.

Suppose, for example, a minor or a seriously delusional person was acquitted of a serious crime because the court recognized him to be not imputable. However, suppose that person, or those responsible for him, were certain that he had not committed that crime, and the evidence against him was missing, insufficient, or contradictory. They could appeal the not-imputable acquittal and seek an accused-did not-commit acquittal. Looking at 2014 CPP Article 593, it appears to me that would be true also according to that procedural law, although there is no statement in the article that those acquitted with the formula the accused-did not-commit or the fact-does not-exist may not appeal.

Relevance to the Knox - Sollecito case:

The Hellmann court acquitted Knox and Sollecito of the murder/rape charges with the formula "the accused did not commit the crime". It's not clear why they would have wanted to appeal that acquittal even if it was allowed under Italian law in 2011.

The Marasca CSC panel acquitted Knox and Sollecito of the murder/rape charges with the formula "the accused [appellants] did not commit the crime". Again, it's not clear why they would have wanted to appeal that acquittal even it is was allowed under Italian law in 2015, had it not been a final verdict. Since it was a final verdict, it could not be appealed whatsoever.

Knox was acquitted by the Boninsegna court of calunnia against the police and Mignini with the formulas "the facts do not exist" and "the act was not an offense under the law".

The reasons those acquittals were issued were:

1. The evidence that Knox had not been subjected to the mistreatment she complained of was missing, insufficient, or contradictory (for the first formula). This applied to the alleged calunnia against both the police and Mignini

2. There was no evidence that Knox knew that Mignini was innocent of her mistreatment, since logically, because under Italian law the prosecutor is the leader of the police engaged in a criminal investigation, he would have been the person directing the police in their methods. Therefore, she had no intent to commit the crime of calunnia.

Should Knox have appealed her acquittal? Because a final judgment in the calunnia against the police verdict was useful for the ECHR case Knox v. Italy concerning her conviction for calunnia against Lumumba, I doubt that she or her lawyers would have considered such an appeal a sensible legal strategy, since it would have, if accepted, delay her acquittal from becoming final.

Now, in terms of your view that there is a hierarchy of acquittals - I see that there is a kind of hierarchy, but one must recognize that a fair and honest court will only use the acquittal formula that is justified by the evidence. And there is no acquittal formula, under current or 2007 - 2015 Italian law, of "insufficient evidence". As I have repeated many times in my posts, the current wording of the acquittal formulas are based on CPP Article 530 paragraphs 1 and 3. Acquittals under paragraph 2 use the acquittal formulas of paragraph 1.


* https://www.brocardi.it/codice-di-pr...ii/art593.html

Last edited by Numbers; 14th January 2020 at 08:03 PM.
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Old 14th January 2020, 08:12 PM   #812
Numbers
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Originally Posted by Numbers View Post
This paper is really exciting in that it details recent changes - as recent as 2018 - in Italian procedural law that should, in theory, help make the Italian judicial system more fair as well as more efficient.

I haven't read all the paper, but I will address here the information relevant to your argument(s) concerning whether or not there is currently a hierarchy to the appeals formulas and whether or not an acquittal can be appealed by the accused.

First, here is a relevant excerpt; I have copied and pasted somewhat more than in your post:



So, this is all interesting. Of course, since my source book on the CPP is from 2014, it's not a reliable check on the above 2018 revision of CPP Article 593. To understand and to verify in detail the comments within the paper, the first step is to obtain a current text of the actual Italian document*:




Google translation (with my help):

1. Without prejudice to the provisions of articles 443, paragraph 3, 448, paragraph 2, 579 and 680, the accused can appeal against judgments of conviction while the public prosecutor can appeal against the same judgments only when they modify the title of the crime or exclude the existence of an aggravating circumstance with special effect or establish a penalty of a different kind from the ordinary crime.

2. The public prosecutor may appeal against judgments of dismissal. The accused may appeal against judgments of dismissal issued at the end of the trial, unless it is a judgment of acquittal because the fact does not exist or because the accused did not commit it.

3. In any case, the judgment of conviction for which only the penalty of a fine has been applied and the judgment of dismissal which is punished with the sole penalty of a fine or with an alternative punishment are unappealable.


Comments: Paragraph 2 indeed allows the accused who has been dismissed to appeal and to seek a better dismissal. This indeed includes acquittals under 3 of the acquittal formulas; however, those who have been acquitted under the formulas "the fact does not exist" (that is, the crime did not happen, which includes the case where the legal factual elements of the crime were not present) or "the accused did not commit the crime".

Translation note: The Italian "proscioglimento" = dismissal and "assoluzione" = acquittal both occur in the above for a reason. Dismissal is the more general term; it includes acquittal as well as prosecution should not have begun or started (CPP Article 529) and extinction due to statute of limitations (CPP Article 531).

Thus, an accused who was acquitted with one of these formulas: 1) "the act was not an offense under the law", 2) "the act was committed with justification or exemption", and 3) "the act was committed by a person who was not imputable (not of mental capacity)" are allowed to appeal their acquittal to one of the unappealable formulas.

That right of appeal makes sense.

Suppose, for example, a minor or a seriously delusional person was acquitted of a serious crime because the court recognized him to be not imputable. However, suppose that person, or those responsible for him, were certain that he had not committed that crime, and the evidence against him was missing, insufficient, or contradictory. They could appeal the not-imputable acquittal and seek an accused-did not-commit acquittal. Looking at 2014 CPP Article 593, it appears to me that would be true also according to that procedural law, although there is no statement in the article that those acquitted with the formula the accused-did not-commit or the fact-does not-exist may not appeal.

Relevance to the Knox - Sollecito case:

The Hellmann court acquitted Knox and Sollecito of the murder/rape charges with the formula "the accused did not commit the crime". It's not clear why they would have wanted to appeal that acquittal even if it was allowed under Italian law in 2011.

The Marasca CSC panel acquitted Knox and Sollecito of the murder/rape charges with the formula "the accused [appellants] did not commit the crime". Again, it's not clear why they would have wanted to appeal that acquittal even it is was allowed under Italian law in 2015, had it not been a final verdict. Since it was a final verdict, it could not be appealed whatsoever.

Knox was acquitted by the Boninsegna court of calunnia against the police and Mignini with the formulas "the facts do not exist" and "the act was not an offense under the law".

The reasons those acquittals were issued were:

1. The evidence that Knox had not been subjected to the mistreatment she complained of was missing, insufficient, or contradictory (for the first formula). This applied to the alleged calunnia against both the police and Mignini

2. There was no evidence that Knox knew that Mignini was innocent of her mistreatment, since logically, because under Italian law the prosecutor is the leader of the police engaged in a criminal investigation, he would have been the person directing the police in their methods. Therefore, she had no intent to commit the crime of calunnia.

Should Knox have appealed her acquittal? Because a final judgment in the calunnia against the police verdict was useful for the ECHR case Knox v. Italy concerning her conviction for calunnia against Lumumba, I doubt that she or her lawyers would have considered such an appeal a sensible legal strategy, since it would have, if accepted, delay her acquittal from becoming final.

Now, in terms of your view that there is a hierarchy of acquittals - I see that there is a kind of hierarchy, but one must recognize that a fair and honest court will only use the acquittal formula that is justified by the evidence. And there is no acquittal formula, under current or 2007 - 2015 Italian law, of "insufficient evidence". As I have repeated many times in my posts, the current wording of the acquittal formulas are based on CPP Article 530 paragraphs 1 and 3. Acquittals under paragraph 2 use the acquittal formulas of paragraph 1.


* https://www.brocardi.it/codice-di-pr...ii/art593.html
Comments on CPP Article 593 paragraph 2 from the Brocardi Italian law firm website (Google translation):

Criminal appeals are legal remedies designed to remove the disadvantages resulting from a decision of the criminal judge deemed unsatisfactory for one of the parties. These remedies are divided into ordinary and extraordinary appeals, depending on whether they are possible against decisions that have not yet or have already become irrevocable. Appeals and appeals by cassation are therefore ordinary appeals, while revision and extraordinary appeals due to factual errors are extraordinary.

The appeal is therefore an ordinary means of appeal through which the parties who present an interest in this regard can try to remedy alleged errors of fact and / or of law contained in the decision of the court of first instance.

The appeal is defined as a partially devolving instrument of appeal, in that it attributes to the knowledge of the judge of second instance only the points of the decision to which the reasons proposed by the appellant refer.
....

As regards the sentences of acquittal in general, the second paragraph establishes that the accused can appeal these sentences issued at the outcome of the trial (therefore excluding the special proceedings that do not provide for the trial, such as for example the abbreviated judgment), except in the case of acquittals because the fact does not exist or because the accused has not committed it. In fact, it appears evident that in these two cases the accused has no interest in challenging, given that there can be no prejudice for him, not even economic.

On the other hand, in the exemplary case of acquittal for lack of imputability, the acquitted accused could challenge the parts of the sentence that established his etiological contribution in determining the crime event.

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Old 16th January 2020, 09:05 AM   #813
Numbers
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One point that may require repetition is that the miscarriage of justice in the Knox - Sollecito case was not unique in Italy. That is not to say that similar abuses do not occur elsewhere; for the US, the non-governmental academic organization National Registry of Exonerations has tracked 2542 exonerations (overturned wrongful convictions) from 1989 to the current date (16 January 2020).*

A 24 October 2019 online publication**, "Note sui trent’anni dall’entrata in vigore del codice di procedura penale: tra luci (poche) ed ombre (tante)" [Notes on the thirty years since the entry into force of the criminal procedure code: between lights (few) and shadows (many)], summarizes statistics for wrongful detention in Italy.

Quote:
Che una giustizia malamente amministrata rovini totalmente vita, onorabilità e affetti della persona coinvolta è affermazione troppo ovvia per poter essere disaminata o ribadita.

I dati ufficiali del 2017 sono a dir poco sconcertanti.

Dagli inizi dell’ultima decade del ‘900 le persone che hanno ricevuto una riparazione per ingiusta detenzione dallo Stato italiano sono oltre 25 mila([10]).

Volendone trarre una media, 1.000 ogni anno.

Se c’è un bilancio tragico per questo trentennale è proprio questo.

Lo Stato, l’Italia, noi tutti abbiamo pagato in questi tre decenni più di 630 milioni di euro, equivalenti a 25 milioni per ogni anno di vigenza del codice di procedura penale.

Il trend è in aumento, così come aumentano il dolore dei soggetti coinvolti e le somme che lo Stato si trova periodicamente a sborsare.

Le cifre riportate circa le ingiuste detenzioni – precedenti o anteriori al giudicato – sono imponenti e richiederebbero un’analisi socio-giuridica a parte.

La domanda è imperiosa: perché nel nostro paese abbiamo numeri così alti e tendenti sempre a una continua crescita?

La risposta merita un apposito studio che non è questa la sede per condurre. Ciò che in questa sede avente ad oggetto le ombre portate con sé dal vigente sistema processuale merita evidenziare è che, aldilà dell’impegno degli uomini fattore principale per la riuscita di un sistema, evidentemente nell’impalcatura normativa i pur ben scritti principi generali sul sistema probatorio non si rivelano massimamente efficienti ed efficaci o comunque, tali da garantire i diritti di libertà e di innocenza delle persone([11]).

Dal 2006 il sistema codicistico italiano impone all’organo dell’accusa (il P.M.) di ricercare le prove che siano idonee ad eliminare oltre ogni ragionevole dubbio la responsabilità penale della persona imputata. Non vi è dubbio alla luce di quello che siamo andati dicendo nelle note che precedono che se per l’affermazione di tale basilare principio si è dovuti aspettare dal 1989 il 2006, il vulnus dello standard probatorio affliggente geneticamente il codice del ’89 è evidente. Si è dovuto attendere il valicare il millennio – dal 900 al terzo millennio – per introdurre un principio fondamentale che altri sistemi([12]) conoscono da sempre.

In buona sostanza nella sentenza di condanna emessa ai sensi dell’art.533([13]) c.p.p. il giudice, l’organo giudicante, è obbligato a valutare la possibilità di una ricostruzione alternativa del fatto sottoposto alle sue cure; ricostruzione che possa far sorgere un dubbio ragionevole sulla colpevolezza del soggetto imputato. ....
Quote:
That a poorly administered justice totally ruins the life, integrity and affections of the person involved is too obvious a statement to be examined or reiterated.

The official figures for 2017 are shocking to say the least.

Since the beginning of the last decade of the 1900s, more than 25 thousand people have received reparations for unjust detention from the Italian state.

This amounts to an average of 1,000 each year.

If there is a tragic budget for this thirty year it is just that.

Over the past three decades, the state, Italy, we have all paid more than 630 million euros, equivalent to 25 million for each year of the code of criminal procedure.

The trend is increasing, as well as the pain of the subjects involved and the sums that the State is periodically paying out.

The figures reported about the unjust detentions - before or before the res judicata {final, irrevocable judgment} - are impressive and would require a separate socio-legal analysis.

The question is imperative: why in our country do we have such high numbers and always tending to continuous growth?

The answer deserves a special study that this is not the place to conduct. What in this case concerning the shadows brought with it by the current procedural system deserves to be highlighted is that, beyond the commitment of men, the main factor for the success of a system, evidently in the regulatory framework the well-written general principles of the system, {however} evidence does not prove to be maximally efficient and effective or in any case such as to guarantee the rights of freedom and innocence of people.

Since 2006, the Italian code {of criminal procedure} system has forced the prosecution body (the PM {public minister = prosecutor}) to search for evidence that is suitable for eliminating beyond any reasonable doubt the criminal liability of the accused person. There is no doubt in the light of what we have been saying in the preceding notes that if for the affirmation of this basic principle we had to wait since 1989 for 2006, the volcanic breach of the probative standard genetically afflicting the code of '89 is evident. It was necessary to wait to cross the millennium - from the 1900s to the third millennium - to introduce a fundamental principle that other systems have always known.

Basically in the judgment of conviction issued pursuant to art. 533 of the criminal code the judge, the judging body, is obliged to evaluate the possibility of an alternative reconstruction of the fact submitted to him; reconstruction that may give rise to a reasonable doubt as to the guilt of the accused person.
....
Google translation with Collins Reverso and my help. I deleted the footnote reference numbers from the translation for clarity.

* http://www.law.umich.edu/special/exo...ges/about.aspx

** https://www.diritto.it/note-sui-tren...d-ombre-tante/

Last edited by Numbers; 16th January 2020 at 09:56 AM.
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Old 16th January 2020, 11:57 AM   #814
Numbers
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Here's some explanation of the current (30 October 2019) Italian law from an Italian lawyer on judgments of dismissal (including acquittals).* Note that the "justification" formula is apparently included within the "not imputable" formula under "another reason", while the fact not having been a crime at the time it was committed is a separate formula.

There is no current formula (nor was there one 2007 - 2015) for acquittal invoking "insufficient evidence". That formula may have existed prior to 2006, when CPP Article 533 was reformed to include the legal principle of an accused being convicted only if proven guilty of a crime beyond a reasonable doubt.

Quote:
La sentenza di proscioglimento
di Concas Alessandra, Referente Aree Diritto Civile, Commerciale e Fallimentare e Diritto di Famiglia
30 ottobre 2019
procedura penale


Nel diritto processuale penale il termine proscioglimento indica la sentenza di non doversi procedere o la sentenza di assoluzione nei confronti dell’imputato.

La sentenza di proscioglimento è emessa al termine del dibattimento.

In casi particolari può essere emessa subito dopo la chiusura delle indagini preliminari, prima del dibattimento.

La sentenza di non doversi procedere (art. 529 c.p.p.)

Il giudice pronuncia sentenza di non doversi procedere, indicandone la causa nel dispositivo, se l’azione penale non doveva essere iniziata o non deve essere proseguita.

Il giudice pronuncia sentenza di non doversi procedere anche quando la prova dell’esistenza di una condizione di procedibilità è insufficiente o contraddittoria.

Sentenza di assoluzione (art. 530 c.p.p.)

Quando il giudice si pronuncia nel merito e proscioglie l’imputato, emette una “sentenza di assoluzione”.

La causa di assoluzione, che deve essere specificata nel dispositivo, deve rientrare in una delle formule assolutorie tradizionali, delle quali all’art. 530 c.p.p.:

“il fatto non sussiste”

“l’imputato non lo ha commesso”

“il fatto non costituisce reato”

“il fatto non è previsto dalla legge come reato”

“il reato è stato commesso da persona non imputabile o non punibile per un’altra ragione”.

I commi due e tre dell’articolo sopra menzionato stabiliscono rispettivamente che:

“il giudice pronuncia sentenza di assoluzione anche quando manca, è insufficiente o è contraddittoria la prova che il fatto sussiste, che l’imputato lo ha commesso, che il fatto costituisce reato o che il reato è stato commesso da persona imputabile”.

“Se c’è la prova che il fatto è stato commesso in presenza di una causa di giustificazione o di una causa personale di non punibilità, oppure vi è dubbio sull’esistenza delle stesse”.

Con la sentenza di assoluzione il giudice applica, nei casi previsti dalla legge, le misure di sicurezza.

Dichiarazione di estinzione del reato (art. 531)

Il giudice pronuncia sentenza di non doversi procedere, enunciandone la causa nel dispositivo, anche quando il reato è estinto, o c’è dubbio sull’esistenza di una causa di estinzione del reato.

Quando ricorre una causa di estinzione del reato, ma dagli atti risulta evidente che il fatto non sussiste o che l’imputato non lo ha commesso o che il fatto non costituisce reato o non è previsto dalla legge come reato, il giudice pronuncia sentenza di assoluzione con la formula prescritta.

Se questo avviene in udienza preliminare, il giudice pronuncia sentenza di non luogo a procedere con la formula prescritta.
Google translation with my help:

Quote:
The judgment of dismissal
by Concas Alessandra, Referent for Civil, Commercial and Bankruptcy Law and Family Law
October 30, 2019
Criminal Procedure


In criminal procedural law the term dismissal indicates the judgment of not having to proceed or the judgment of acquittal for the accused.

The judgment of dismissal is issued at the end of the trial.

In special cases it can be issued immediately after the closure of the preliminary investigations, before the trial.

The decision not to proceed (Article 529 of the Italian Criminal Code)

The judge pronounces the decision not to proceed, indicating the cause in the short-form verdict (= "the device"), if the criminal action should not have started or should not be continued.

The judge pronounces a decision not to proceed even when the proof of the existence of a condition of admissibility is insufficient or contradictory.

Sentence of acquittal (art.530 of the criminal code)

When the judge pronounces on the merits and acquits the accused, he issues a "judgment of acquittal".

The cause of acquittal, which must be specified in the device, must fall within one of the traditional acquittal formulas, of which in art. 530 c.p.p .:

"The fact does not exist"

"The accused did not commit it"

"The fact does not constitute a crime"

"The fact is not foreseen by law as a crime"

"The offense was committed by a person not attributable or not punishable for another reason."

Paragraphs two and three of the aforementioned article respectively establish that:

"The judge pronounces a judgment of acquittal even when there is no evidence, insufficient or contradictory evidence that the fact exists, that the accused has committed it, that the fact constitutes an offense or that the offense was committed by an imputable person".

"If there is evidence that the fact was committed in the presence of a cause of justification or a personal cause of non-punishment, or there is doubt about the existence of the same".

With the acquittal sentence, the judge applies, in the cases provided for by law, the security measures.

Declaration of extinction of the crime (art.531)

The judge pronounces the decision not to proceed, stating the cause in the device, when the crime is extinguished {beyond the statute of limitation}, or there is doubt about the existence of a cause for extinction of the crime.

When a cause of extinction of the crime occurs, but from the documents it is clear that the fact does not exist or that the accused has not committed it or that the fact does not constitute a crime or is not foreseen by law as a crime, the judge pronounces the judgment of acquittal with the prescribed formula.

If this occurs at the preliminary hearing, the judge pronounces a decision not to proceed with the prescribed formula.
* Source: https://www.diritto.it/la-sentenza-di-proscioglimento/

Last edited by Numbers; 16th January 2020 at 12:01 PM.
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Old 16th January 2020, 06:38 PM   #815
Numbers
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Here is some further information on the Italian judgment of acquittal from an Italian lawyer (Concas Alessandra, Referente Aree Diritto Civile, Commerciale e Fallimentare e Diritto di Famiglia;
30 ottobre 2019).

According this lawyer, the history of the former acquittal based on "insufficient evidence" is that it was introduced as paragraph 3 of CPP Article 479 into the 1930 Code of Criminal Procedure (under the fascist government), but it was removed entirely from the reformed 1988 Code of Criminal Procedure. According to the lawyer, paragraph 2 of CPP Article 530 should not be confused as having the legal meaning of the 1930 "insufficient evidence" acquittal, based upon the wording of their respective texts and a judgment of the Supreme Court of Cassation.

Here is the lawyer's discussion of this topic, from a part of the same essay quoted in part in my previous post.

Quote:
Proscioglimento prima del dibattimento

Se l’azione penale non doveva essere iniziata o non deve essere proseguita, oppure se il reato è estinto e se per accertarlo non è necessario procedere al dibattimento, il giudice, in camera di consiglio, sentiti il pubblico ministero e l’imputato e se questi non si oppongono, pronuncia sentenza inappellabile di non doversi procedere, enunciandone la causa nel dispositivo.

L’assoluzione ai sensi dell’articolo 530 comma 2 c.p.p., con la formula “perché il fatto non sussiste” costituisce un completo e pieno riconoscimento dell’innocenza degli imputati dai reati contestati senza alcuna riserva o aspetto che possa in qualche modo mettere in dubbio una pronuncia assolutamente liberatoria.

È sbagliata l’opinione che la formula assolutoria in qualche modo richiami l’assoluzione per insufficienza di prove prevista dall’articolo 479 comma 3 c.p.p. del 1930, basta la semplice comparazione dei testi normativi.

Nel testo del 1930 si prevedeva la assoluzione per insufficienza di prove quando non risultassero “sufficienti prove per condannare”.
Nel testo del 1988 (articolo 530 comma 2) “il giudice pronuncia sentenza di assoluzione anche quando manca, è insufficiente o è contraddittoria la prova che il fatto sussiste, che l’imputato lo ha commesso, che il fatto costituisce reato o che il reato è stato commesso da persona imputabile”.

In questa stessa ottica, la Corte di Cassazione ha ritenuto che «nel caso di formula assolutoria accompagnata dalla indicazione del secondo comma dell’articolo 530 c.p.p., l’interesse dell’imputato ad impugnare (nella specie preteso pregiudizio morale, per il “dubbio”) non si può ricavare dal richiamo, nel dispositivo, del comma dell’articolo menzionato, perché il richiamo non è indicativo di un’assoluzione per dubbio (vedi le varie ipotesi previste), neanche per gli “operatori del diritto”.

Si deve lo stesso attingere alla motivazione, perché non è vero che la distinzione tra il primo ed il secondo comma dell’articolo 530 Cpp, se il secondo comma è esplicitato nel dispositivo, fa “resuscitare” la formula dubitativa.

Le sentenze di proscioglimento si dividono in:

Sentenze di non doversi procedere, che si limitano a statuire su aspetti processuali, senza che avvenga un accertamento del fatto.

Sentenze di assoluzione, che contengono l’accertamento del fatto, compiuto dal giudice con le prove, e sono idonee a fondare l’efficacia del giudicato nei processi civili, amministrativi e disciplinari.

Con la sentenza di proscioglimento il giudice ordina la liberazione dell’imputato in stato di custodia cautelare e dichiara la cessazione delle altre misure cautelari personali eventualmente disposte.

Con la sentenza che assolve l’imputato per cause diverse dal difetto di imputabilità, il giudice, se ne è fatta richiesta, condanna la parte civile alla rifusione della spese processuali sostenute dall’imputato e dal responsabile civile per effetto dell’azione civile.

Se il danneggiato ha esercitato l’azione civile nel processo penale per colpa grave, il giudice può condannare la parte civile al risarcimento dei danni causati all’imputato assolto.

Nel caso di assoluzione da un reato perseguibile a querela con le formule ampiamente liberatorie il fatto non sussiste o l’imputato non lo ha commesso, il giudice condanna il querelante al pagamento delle spese processuali anticipate dallo Stato ed alla rifusione delle spese e al risarcimento del danno a favore dell’imputato assolto.
Translation by Google, with help from Collins Reverso and me:

Quote:
Discharge {= Dismissal} before the trial

If the prosecution should not have started or should not be continued, or if the crime is extinguished {the statute of limitations time limit exceeded} and if it is not necessary to proceed to the trial to ascertain it, the judge, in the {court's} council chamber, having heard the public prosecutor and the accused and if these do not oppose {the judgment}, he pronounces the final judgment that he does not have to proceed, stating the cause in the short-form verdict {= “dipositivo” =the “PQM” = “the device” = the court's disposition order = the operative part of the judgment}.

The acquittal pursuant to Article 530 paragraph 2 of the Italian Criminal Code, with the formula "because the fact does not exist" constitutes a complete and full recognition of the innocence of the accused from the alleged crimes without any reservation or any aspect that could in any way cast doubt that {it is} an absolutely liberating ruling.

It is wrong {mistaken, incorrect} to believe that the acquittal formula in some way recalls {references} the acquittal due to insufficient evidence required by article 479 paragraph 3 of the 1930 Code of Criminal Procedure; a simple comparison of the normative texts is enough {to show the differences}.

The 1930 text provided for acquittal for insufficient evidence when "sufficient evidence to convict" was not found.

In the 1988 text (article 530, paragraph 2) “the judge pronounces a judgment of acquittal also when there is no*, insufficient or contradictory proof that the fact exists, that the accused has committed it, that the fact constitutes a crime or that the crime it was committed by an imputable person".

In this same vein, the Court of Cassation held that "in the case of an acquittal formula accompanied by the indication of the second paragraph of article 530 of the Code of Criminal Procedure, the interest of the accused to appeal (in the present case alleged moral prejudice, because of the "doubt") cannot be derived from the reference, in the short-form verdict, of the paragraph of the article mentioned, because the reference is not indicative of an acquittal due to doubt (see the various hypotheses envisaged), not even for legal professionals.

The same {conclusion} must be drawn from the motivation {report}, because it is not true that the distinction between the first and second paragraphs of Article 530 of the Code of Criminal Procedure, if the second paragraph is made explicit in the short-form verdict, causes the prejudicial {doubting} formula {of the 1930 Code of Criminal Procedure} to "resurrect".

The judgments of discharge {dismissal} are divided into:

Judgments of not having to proceed merely rule on procedural aspects, without an ascertainment of the fact.

Judgments of acquittal contain the ascertainment {verification} of {judicial} fact, are made by the judge based upon the evidence, and are suitable for establishing the effectiveness of the res judicata {irrevocable legal judgment} in civil, administrative and disciplinary trials.

With the judgment of discharge {dismissal}, the judge orders the release of the accused from any pretrial detention and declares the cessation of any other personal precautionary measures that may have been ordered.

With the judgment that acquits the accused for reasons other than the lack of imputability, the judge, if requested, orders the recovery from the civil party of the procedural costs incurred by the accused and by the person responsible for the civil action.

If the injured party has taken civil action in the criminal trial for gross negligence, the judge can order the civil party to compensate the damages caused to the acquitted defendant..

In the case of a crime that was prosecuted based upon a complaint, and the accused was acquitted with a formula that the fact does not exist or the accused did not commit the crime, the judge condemns the complainant to pay the costs anticipated by the State and to compensate the acquitted accused for expenses and damages.

* According to Collins Reverso, the relevant translations of “manca” include: missing, lacking, there is no, don't have. The view appears to has been expressed by some some pro-guilt posters or a few others that the translation of “manca” is simply a synonym for the translation of “insufficiente” (English translation “insufficient”), apparently based on the several meanings (missing or in short supply or deficient) of the possible English translation “lacking”, but it is unlikely that the Italian parliament would employ a legally meaningless redundancy in the text of a law. Based on Collins Reverso, it does not appear that “manca” translates to “in short supply” or “deficient”.

Source: https://www.diritto.it/la-sentenza-di-proscioglimento/

Last edited by Numbers; 16th January 2020 at 06:46 PM.
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