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Tags !MOD BOX WARNING! , Amanda Knox , Italy cases , Meredith Kercher , murder cases , Raffaele Sollecito

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Old 19th May 2019, 12:24 PM   #3601
Numbers
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The following ECHR case-law is from Diallo v. Sweden 13205/07 (Decision) 05/01/2010:

23. The Court reiterates that paragraph 3 (e) of Article 6 states that every defendant has the right to the free assistance of an interpreter. That right applies not only to oral statements made at the trial hearing but also to documentary material and the pre-trial proceedings. This means that an accused who cannot understand or speak the language used in court has the right to the free assistance of an interpreter for the translation or interpretation of all those documents or statements in the proceedings instituted against him which it is necessary for him to understand or to have rendered into the court’s language in order to have the benefit of a fair trial (see, for example, Hermi v. Italy, 18114/02, §§ 69-70). The said provision does not go so far as to require a written translation of all items of written evidence or official documents in the procedure. In that connection, it should be noted that the text of the relevant provisions refers to an “interpreter”, not a “translator”. This suggests that oral linguistic assistance may satisfy the requirements of the Convention (see Husain v. Italy (dec.), no. 18913/03, 24 February 2005). The fact remains, however, that the interpretation assistance provided should be such as to enable the defendant to have knowledge of the case against him and to defend himself, notably by being able to put before the court his version of the events (see Güngör v. Germany (dec.), no. 31540/96, 17 May 2001). In view of the need for that right to be practical and effective, the obligation of the competent authorities is not limited to the appointment of an interpreter but, if they are put on notice in the particular circumstances, may also extend to a degree of subsequent control over the adequacy of the interpretation provided (see Kamasinskiv. Austria, no. 9783/82, § 74, 19 December 1989).

24. The Court notes that the investigation stage has crucial importance for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered. Moreover, in order to safeguard against ill-treatment and to avoid incriminating statements made during police interrogation without access to a lawyer being used for a conviction, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right (see, inter alia, Salduz v. Turkey [GC], no. 36391/02, §§ 54-55, 27 November 2008).

25. In the same line of reasoning, the assistance of an interpreter should be provided during the investigating stage unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right.

Last edited by Numbers; 19th May 2019 at 12:27 PM.
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Old 19th May 2019, 09:37 PM   #3602
Numbers
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Here is another section addressing admissibility from the ECHR's judgment Knox v. Italy. The translation is by Google with my help:

ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (e) OF THE CONVENTION

173. The applicant also complains that she was not assisted by a professional and independent interpreter during her interrogations of 6 November 2007 and that the police officer who assisted her played a role of "mediator" by suggesting, for example, hypotheses relating to the unfolding of facts. She relies in this respect on Article 6 §§ 1 and 3 (e) of the Convention, which reads as follows:

“1. Everyone has the right to a fair ... hearing ... by a court ... that will ... decide on the merits of any criminal charge against him.

2. (...)

3. Everyone charged with a criminal offense has the following minimum rights: (...)

(...)

(e) to have the free assistance of an interpreter if he can not understand or speak the language used in court.”

A. Admissibility

174. The Government states firstly that the applicant did not raise her complaint during the arrest validation hearing (see paragraph 32 above), nor during the proceedings before the Review Tribunal, and in general, that the applicant had failed to submit this complaint to the national authorities throughout the procedure. The Government therefore considers that this part of the application should be rejected for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention.

175. The Court does not share the Government's position. It notes that the applicant denounced the conduct of the interpreter A.D. in the context of her spontaneous statements of 13 March 2009 and her hearing on 12 June 2009 before the Assize Court of Perugia (see paragraphs 45 and 50 above). It can not overlook the fact that, in the context of the hearing of 13 March 2009, A.D. confirmed in detail the information provided by the applicant on this subject (see paragraphs 40 and 41 above).

176. In addition, at the end of that hearing, the applicant's defense {lawyer} requested that the {court} documents be forwarded to the public prosecutor's office, considering that his client's statements contained elements raising questions of criminal responsibility, however without success (see paragraph 47 above).

177. In those circumstances, the Court considers that the objection of non-exhaustion of domestic remedies raised by the respondent Government must be rejected.

178. Noting that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it does not face any other ground of inadmissibility, the Court declares it admissible.
______

It is noteworthy that the Italian government claim misrepresents that Knox did not complain about the actions of the interpreter, Anna Donnino. In response, the ECHR points out that the domest court record includes her complaints and shows that her defense lawyer was not allowed to have her complaints officially forwarded to a prosecutor for legal action.

Last edited by Numbers; 19th May 2019 at 09:43 PM.
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Old 19th May 2019, 10:04 PM   #3603
Numbers
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From the ECHR judgment Knox v. Italy, here is the section on the merits of the claim of a violation of Convention Articles 6.1 with 6.3c. The translation is be Google with my help.

B. On the merits

1. Arguments of the parties

179. The applicant reiterates that the interpreter A.D. was not independent since she was a member of the police station performing the functions of interpreter. Moreover, according to her, A.D. had behaved beyond her functions as an interpreter.

180. The Government challenges the applicant's argument. It states that the applicant was assisted by different interpreters at all stages of the proceedings. As to A.D.'s duties, it submits that, according to domestic law, investigators are free in the choice of appointment of interpreters.

181. The Government indicates that Article 146 of the Code of Criminal Procedure does not require the authorities to select the interpreter from an official register. According to it, it is sufficient in this respect that the person concerned is a "language expert" and that he performs his duties for the sole purpose of making the truth known.

2. The Court's assessment

182. The Court reiterates that paragraph 3 (e) of Article 6 of the Convention means that the accused who does not understand or speak the language used in the courtroom is entitled to the free services of an interpreter for the purpose of translating or interpreting for him any act of the proceedings against him for which he needs, in order to benefit from a fair trial, to grasp the meaning or have it {his meaning} rendered in the language of the court. Interpretive assistance must enable the accused to know what he is accused of and to defend himself, in particular by delivering his version of events to the court. The right thus guaranteed must be concrete and effective. The obligation of the competent authorities is therefore not limited to appointing an interpreter: it is also incumbent upon them, once alerted in a given case, to exercise some subsequent control of the value of the interpretation provided (Hermi v. Italy [GC], No. 18114/02, § 80, ECHR 2006-XII, Kamasinski v. Austria, 19 December 1989, § 74, Series A No. 168, Güngör v. Germany (dec.), No. 31540/96, May 17 2001, Cuscani v. The United Kingdom, No. 32771/96, § 39, 24 September 2002, Protopapa v. Turkey, No. 16084/90, § 80, 24 February 2009 and Vizgirda v. Slovenia, No. 59868/08, §§ 75-79, August 28, 2018).

183. In addition, like the assistance of a lawyer, that of an interpreter must be guaranteed at the stage of the {pre-trial} investigation, unless it can be shown that there are compelling reasons to restrict this right (see, to that effect, Diallo v. Sweden (dec.), No. 13205/07, § 25, January 5, 2010, Baytar v. Turkey, No. 45440/04, §§ 50 and following, October 14, 2014, and Şaman v. Turkey, No. 35292/05, § 30, April 5, 2011).

184. The Court also states that it is not necessary to lay down, in the field of Article 6 § 3 (e) of the Convention, detailed conditions as to the manner in which the services of an interpreter may be provided to assist the accused. An interpreter is not an agent of the court within the meaning of Article 6 § 1 of the Convention and is not subject to any formal requirement of independence or impartiality as such. His services must provide the accused with effective assistance in the conduct of his defense and his conduct must not be likely to affect the fairness of the trial (Uçak v. United Kingdom (dec.), No. 44234/98, January 24, 2002).

185. In the present case, it is clear from the file that A.D.'s own confession of the latter's role while the applicant, accused in criminal proceedings within the meaning of Article 6 § 1 of the Convention, formulated her version of the facts, went beyond the functions of interpreter that she had to ensure. The Court notes that A.D. had indeed intended to forge a human and emotional relationship with the applicant, assuming the role of mediator and acquiring a maternal attitude which was in no way required in this case (see paragraphs 40 and 41 above).

186. The Court notes that, despite the fact that the applicant raised these complaints before the national authorities, she did not, however, benefit from a procedure capable of shedding light on her allegations (see, mutatis mutandis, Mantovanelli v. France, 18 March 1997, Reports 1997-II). The authorities failed to assess A.D.'s conduct, to assess whether her duties as an interpreter had been exercised in accordance with the guarantees provided for in Article 6 §§ 1 and 3 (e), and to consider whether this conduct had an impact on the outcome of the criminal proceedings against the applicant. The Court further notes that no mention of the exchanges which took place between the applicant and A.D. during the interrogation of 6 November 2007 is made in the minutes relating thereto.

187. In the view of the Court, this initial defect thus had repercussions on other rights which, while distinct from the one alleged to be infringed, are closely related to it, and compromised the fairness of the proceedings as a whole (Baytar, cited above, § 55, 14 October 2014).

188. In the light of the foregoing, Article 6 §§ 1 and 3 (e) of the Convention have been violated in this case.
_____

In this section, the ECHR judgment does not detail the suggestive recollections of her personal experience of temporary traumatic amnesia that Anna Donnino recounted, according to Knox's statements and testimony and Donnino's testimony. However, this incident is mentioned in paragraphs 40 and 45 of the ECHR judgment.

Last edited by Numbers; 19th May 2019 at 10:06 PM.
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Old 20th May 2019, 07:20 AM   #3604
TruthCalls
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Originally Posted by Stacyhs View Post
I agree the tactic was to get Lumumba's testimony and statement in front of the jury.
I also suspect Lumumba's tune changing so drastically from claiming the police "hit, kicked, punched and threatened" him to his being "treated well" had two motivations:

1. He could sue both police (wrongful arrest and jailing) AND Knox (calunnia) by claiming he was 'treated well' by the police. He couldn't very well sue Knox for calunnia if he supported her account of being coerced, slapped, and threatened.

2. He was in danger of being sued himself for calunnia by the police if he continued to claim he was abused during is interrogation just like Knox.
Add in his bar being kept closed for more than a month after he was cleared of having any involvement in the crime. Perhaps a little added incentive to stick to the police' version of events.
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Old 20th May 2019, 09:22 AM   #3605
Numbers
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Originally Posted by Numbers View Post
From the ECHR judgment Knox v. Italy, here is the section on the merits of the claim of a violation of Convention Articles 6.1 with 6.3e. The translation is by Google with my help.

B. On the merits

1. Arguments of the parties

179. The applicant reiterates that the interpreter A.D. was not independent since she was a member of the police station performing the functions of interpreter. Moreover, according to her, A.D. had behaved beyond her functions as an interpreter.

180. The Government challenges the applicant's argument. It states that the applicant was assisted by different interpreters at all stages of the proceedings. As to A.D.'s duties, it submits that, according to domestic law, investigators are free in the choice of appointment of interpreters.

181. The Government indicates that Article 146 of the Code of Criminal Procedure does not require the authorities to select the interpreter from an official register. According to it, it is sufficient in this respect that the person concerned is a "language expert" and that he performs his duties for the sole purpose of making the truth known.

2. The Court's assessment

182. The Court reiterates that paragraph 3 (e) of Article 6 of the Convention means that the accused who does not understand or speak the language used in the courtroom is entitled to the free services of an interpreter for the purpose of translating or interpreting for him any act of the proceedings against him for which he needs, in order to benefit from a fair trial, to grasp the meaning or have it {his meaning} rendered in the language of the court. Interpretive assistance must enable the accused to know what he is accused of and to defend himself, in particular by delivering his version of events to the court. The right thus guaranteed must be concrete and effective. The obligation of the competent authorities is therefore not limited to appointing an interpreter: it is also incumbent upon them, once alerted in a given case, to exercise some subsequent control of the value of the interpretation provided (Hermi v. Italy [GC], No. 18114/02, § 80, ECHR 2006-XII, Kamasinski v. Austria, 19 December 1989, § 74, Series A No. 168, Güngör v. Germany (dec.), No. 31540/96, May 17 2001, Cuscani v. The United Kingdom, No. 32771/96, § 39, 24 September 2002, Protopapa v. Turkey, No. 16084/90, § 80, 24 February 2009 and Vizgirda v. Slovenia, No. 59868/08, §§ 75-79, August 28, 2018).

183. In addition, like the assistance of a lawyer, that of an interpreter must be guaranteed at the stage of the {pre-trial} investigation, unless it can be shown that there are compelling reasons to restrict this right (see, to that effect, Diallo v. Sweden (dec.), No. 13205/07, § 25, January 5, 2010, Baytar v. Turkey, No. 45440/04, §§ 50 and following, October 14, 2014, and Şaman v. Turkey, No. 35292/05, § 30, April 5, 2011).

184. The Court also states that it is not necessary to lay down, in the field of Article 6 § 3 (e) of the Convention, detailed conditions as to the manner in which the services of an interpreter may be provided to assist the accused. An interpreter is not an agent of the court within the meaning of Article 6 § 1 of the Convention and is not subject to any formal requirement of independence or impartiality as such. His services must provide the accused with effective assistance in the conduct of his defense and his conduct must not be likely to affect the fairness of the trial (Uçak v. United Kingdom (dec.), No. 44234/98, January 24, 2002).

185. In the present case, it is clear from the file that A.D.'s own confession of the latter's role while the applicant, accused in criminal proceedings within the meaning of Article 6 § 1 of the Convention, formulated her version of the facts, went beyond the functions of interpreter that she had to ensure. The Court notes that A.D. had indeed intended to forge a human and emotional relationship with the applicant, assuming the role of mediator and acquiring a maternal attitude which was in no way required in this case (see paragraphs 40 and 41 above).

186. The Court notes that, despite the fact that the applicant raised these complaints before the national authorities, she did not, however, benefit from a procedure capable of shedding light on her allegations (see, mutatis mutandis, Mantovanelli v. France, 18 March 1997, Reports 1997-II). The authorities failed to assess A.D.'s conduct, to assess whether her duties as an interpreter had been exercised in accordance with the guarantees provided for in Article 6 §§ 1 and 3 (e), and to consider whether this conduct had an impact on the outcome of the criminal proceedings against the applicant. The Court further notes that no mention of the exchanges which took place between the applicant and A.D. during the interrogation of 6 November 2007 is made in the minutes relating thereto.

187. In the view of the Court, this initial defect thus had repercussions on other rights which, while distinct from the one alleged to be infringed, are closely related to it, and compromised the fairness of the proceedings as a whole (Baytar, cited above, § 55, 14 October 2014).

188. In the light of the foregoing, Article 6 §§ 1 and 3 (e) of the Convention have been violated in this case.
_____

In this section, the ECHR judgment does not detail the suggestive recollections of her personal experience of temporary traumatic amnesia that Anna Donnino recounted, according to Knox's statements and testimony and Donnino's testimony. However, this incident is mentioned in paragraphs 40 and 45 of the ECHR judgment.
I corrected a typo: the section relates to Articles 6.1 with 6.3e, not 6.3c, as I had written in the lead sentence of my post. There was a second, minor typo also corrected in that lead: "by" replacing "be".

Last edited by Numbers; 20th May 2019 at 09:25 AM.
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Old 20th May 2019, 09:47 AM   #3606
Numbers
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From the ECHR case Knox v. Italy, the section on admissibility of the alleged violation of Convention Articles 6.1 with 6.3c. The translation is by Google with my help.

"ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION

141. The applicant alleges that she was not assisted by a lawyer during the interrogations of 6 November 2007. She complains of the unfairness of the proceedings and relies in this respect on Article 6 §§ 1 and 3 (c) of the Convention, as worded in its parts relevant to this case:

“1. Everyone has the right to a fair ... hearing ... by a court ... that will ... decide on the merits of any criminal charge against him.

2. (...)

3. Everyone charged with a criminal offense has the following minimum rights: (...)

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”

142. The Government observes that the statements made by the applicant on 6 November 2007 in the absence of a lawyer were declared unusable in relation to the offenses under investigation, namely the murder of M.K. and the sexual violence perpetrated against her. However, it states that, according to the established case law of the Court of Cassation (judgments Nos. 10089 of 2005, 26460 of 2010 and 33583 of 2015), spontaneous statements made by a person under investigation in the absence of a defense lawyer can, in any case, be used when they constitute, as in this case, an offense in themselves. It added that the applicant had the assistance of a lawyer when the first evidence of her responsibility for the murder of M.K. appeared.

143. In addition, the Government alleged that the applicant had been sentenced for malicious false accusation not only on the basis of the statements made on 6 November 2007, but also on the basis of "a multitude of other circumstances", recalled in the judgment of conviction of the Assize Court of 5 December 2009 (see paragraph 80 above).

144. The applicant submits that she was not informed of her right to benefit from legal assistance during her hearings on 6 November 2007, since a defense lawyer {public defender} was not appointed until 8:30 am that day {after both of her disputed interrogation statements were taken}, and denounces the impact of the use of this evidence on the fairness of the proceedings.

A. Admissibility

145. Noting that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it does not face any other ground of inadmissibility, the Court declares it admissible."
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Old 20th May 2019, 09:48 AM   #3607
Numbers
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From Knox v. Italy, the section on the merits of the alleged violation of Convention Articles 6.1 with 6.3c. The translation is by Google with my help.

"B. On the merits

1. The general principles

146. The general principles concerning the applicability of Article 6 of the Convention in criminal law, the right to counsel and the overall fairness of criminal proceedings, the temporary restriction of access to a lawyer for compelling reasons and the impact of the procedural deficiencies that occurred during the investigation into the overall fairness of the criminal trial are established, in whole or in part, in Simeonovi v. Bulgaria ([GC], No. 21980/04, §§ 110-120, May 12, 2017), Ibrahim and Others v. the United Kingdom ([GC], Nos. 50541/08 and 3 others, §§ 249-274, September 13, 2016), Salduz v. Turkey ([GC], No. 36391/02, §§ 50-55, ECHR 2008) and Beuze v. Belgium ([GC], No. 71409/10, §§ 119-150, November 9, 2018).

2. Application of the general principles to the facts of this case

(a) The applicability of Article 6 of the Convention

147. The Court notes at the outset that the first question in this case is whether Article 6 § 1 of the Convention was applicable to the facts of the case. It recalls in that regard that, on 6 November 2007, the applicant was heard twice: at 1:45 am and 5:45 am.

148. It notes that the two statements were originally collected as part of the police's acquisition of summary information, during which time the applicant had not been formally investigated.

149. With regard to the statements taken at 1:45 am, the Court reiterates that the guarantees offered by Article 6 §§ 1 and 3 of the Convention apply to any "accused" in the autonomous sense of the term under the Convention. There is a "criminal charge" where a person is formally charged by the competent authorities or where the actions of the authorities because of suspicions against the person have a significant impact on his situation (Simeonovi, cited above, §§ 110-111).

150. Applying this principle to the present case, the Court therefore wonders whether, at the time of the hearings, the domestic authorities had reasonable grounds to suspect that the applicant was involved in the murder of M.K.

151. It observes in that regard that the applicant had already been heard by the police on 2, 3 and 4 November 2007 and that her cell phone had been tapped. It notes that the facts of the case also show that, on the evening of 5 November 2007, the attention of the investigators focused on the applicant (see paragraphs 12-14 above). It notes that while she went to the police station spontaneously, she was asked questions in the corridor by police officers who then continued to interrogate her in a room where she had been previously subjected twice, for hours, to close interrogations.

152. In the Court's view, even assuming that these elements are not sufficient to conclude that, at 1:45 am on 6 November 2007, the applicant could be considered to be a suspect within the meaning of its case-law, it is necessary to note that, as the Government acknowledged, when she made her 5:45 am statements to the public prosecutor, the applicant had formally acquired the status of a person under investigation. The Court therefore considers that there is no doubt that, at 5:45 am at the latest, the applicant was the subject of a criminal charge within the meaning of the Convention (Ibrahim and Others, cited above, § 296). .

(b) Whether there were overriding reasons for the restriction of the right of access to a lawyer

153. The Court notes that, if the domestic courts have concluded that the disputed statements could not be used against the applicant for the crimes of murder and sexual violence, as the Government has indicated, in accordance with domestic case-law (paragraph 142 above), these same statements could have been used, in the absence of a counsel, insofar as they included in themselves a criminal offense.

154. It goes on to point out that restrictions on access to a lawyer for compelling reasons are permitted during the pre-trial phase only in exceptional cases, and that they must be temporary in nature and based on an individual assessment of the particular circumstances of the case (Beuze, cited above, § 142).

155. In the present case, however, the Government refers to a jurisprudential interpretation permitting the use of spontaneous statements made by a person under investigation in the absence of a defense counsel when they constitute an offense in themselves.

156. Even if it seeks to read that argument as a "compelling reason" within the meaning of its case-law, the Court notes, however, that the jurisprudential interpretation invoked is general in nature. Nor has the Government established the existence of exceptional circumstances which could have justified the restrictions on the applicant's right. It is not for the Court to seek {such circumstances} on its own (Simeonovi, cited above, § 130).

157. The Court thus finds no compelling reasons to justify the above-mentioned restrictions in this case.

(c) Fairness of the proceedings as a whole

158. In such circumstances, the Court must assess the fairness of the proceedings by exercising a very strict test. The burden of proof thus falls on the Government, which has to demonstrate convincingly that the applicant has nonetheless benefited globally from a fair criminal trial. The Government's inability to establish compelling reasons weighs heavily in the balance and may tilt the Court in the direction of a violation of Article 6 §§ 1 and 3 (c) (Beuze, cited above, § 165).

159. In that exercise, the Court will examine, in so far as they are relevant to the present case, the various factors arising from its case-law (Ibrahim and Others, cited above, § 274, and Simeonovi, cited above, § 120).

160. The Court first emphasizes the applicant's state of vulnerability, a young foreign girl aged 20 at the material time who was recently in Italy and did not speak Italian fluently ( Kaçiu and Kotorri, cited above, §§ 119-121 and Salduz, cited above, § 54).

161. The Court observes that, only a few hours after the impugned {interrogation} hearings, the applicant had promptly retracted her statements, in particular by means of a text drafted at her initiative on 6 November 2007 at around 1 pm and handed over to the police (paragraph 20 point 3 in fine and point 4 letter e above), another text drafted on 9 November 2007 for the attention of her lawyers (paragraph 24 point 14 above), and the telephone call to her mother on November 10, 2007 during which the line was tapped. The Court notes that, however, six months later, on 14 May 2008, the applicant was charged with malicious false accusation.

162. It should also be pointed out that, as is clear from the judgment of the Florence Court of 14 January 2016, the applicant's statements of 6 November 2007 were taken in a context of strong psychological pressure (see paragraph 103 below).

163. As to the use of the evidence, the Court observes that the statements at issue constituted in themselves the offense which was alleged against the applicant and, therefore, the material evidence for her verdict of guilt for malicious false accusation (see, on the contrary, Gäfgen, cited above, § 178, mutatis mutandis, Kaçiu and Kotorri, cited above, § 118, and mutatis mutandis, Sergey Ivanov v. Russia, No. 14416/06, §§ 90-92, May 15, 2018).

164. The Court further notes that the circumstances in which the offending statements were obtained were not clarified in an investigation (see paragraph 138).

165. Lastly, it notes that it does not appear from the file, in particular the record of the applicant's interrogation at 5:45 am, that she was notified of her procedural rights (Ibrahim et al. above, § 273).

d) Conclusion

166. The Court therefore finds that the Government has failed to demonstrate that the restriction of the applicant's access to legal aid at the hearing on 6 November 2007 has not irretrievably prejudiced the fairness of the trial as a whole.

167. In the light of the foregoing, Articles 6 §§ 1 and 3 (c) of the Convention have been violated in this case."
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Old 20th May 2019, 11:57 AM   #3608
Numbers
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Based upon the apparent quality of the facts and reasoning presented in the ECHR Chamber judgment that led the Chamber to conclude that Italy violated Amanda Knox's Convention rights under Convention Articles 6.1 with 6.3c and also Articles 6.1 with 6.3e, resulting in irretrievable prejudice to the fairness of her trial, I find it difficult to believe that a Grand Chamber judgment would differ from that of the Chamber.

While I believe it is unlikely that the Grand Panel Chamber will accept Italy's request for referral, I suspect that it might in order to have the Grand Chamber review, for instance, the case-law relating to Article 6.3e. This is probably the first case where the interpreter actually prejudiced the case by making suggestive comments to a person under interrogation. In the earlier ECHR cases under Article 6.3e that I have read, no interpreter was provided.
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Old 20th May 2019, 12:10 PM   #3609
Stacyhs
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Originally Posted by TruthCalls View Post
Add in his bar being kept closed for more than a month after he was cleared of having any involvement in the crime. Perhaps a little added incentive to stick to the police' version of events.
What a dramatic turn his description of Amanda took from his initial DM interview where she was a horrible, untrustworthy person whom he'd had to fire for her outrageous and "wild mood swings, crass sexual innuendo and
complete unwillingness to do any work" and his sworn testimony! In court he testified that both their professional and personal relationship were 'good'. No matter which you choose to believe, one way or the other, he is a proven liar.
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Old 20th May 2019, 04:32 PM   #3610
Numbers
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Originally Posted by Stacyhs View Post
What a dramatic turn his description of Amanda took from his initial DM interview where she was a horrible, untrustworthy person whom he'd had to fire for her outrageous and "wild mood swings, crass sexual innuendo and
complete unwillingness to do any work" and his sworn testimony! In court he testified that both their professional and personal relationship were 'good'. No matter which you choose to believe, one way or the other, he is a proven liar.
Is there evidence that the DM statements attributed to Lumumba were indeed made by him? Let's not forget that the DM has been found in some cases to have fabricated information in their articles. See, for example:

https://www.washingtonpost.com/news/...=.88620c062411

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Old 20th May 2019, 04:53 PM   #3611
Stacyhs
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Originally Posted by Numbers View Post
Is there evidence that the DM statements attributed to Lumumba were indeed made by him? Let's not forget that the DM has been found legally liable in some cases for fabricating information in their articles.
If he had been misquoted so horrendously, he could have sued the DM. He has not. He has also repeated the "actress" accusation:

Quote:
She's empty; dead inside. She's the ultimate actress, able to switch her emotions on and off in an instant.
(I Fired Foxy Knoxy)


Quote:
Speaking in a telephone interview with MailOnline from Poland, Mr Lumumba said: ‘I feel so angry. When I heard the verdict I was shocked for poor Meredith. I have always said that Amanda is a fantastic actress and that’s what she will always be for me.
https://www.dailymail.co.uk/news/art...ed-murder.html

I think he made the quoted statements in the "Fired" interview. I'd be more suspicious if Nick "I can't be bothered to fact check" Pisa had written it, but it was written by someone named Antonia Hoyle.
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Old 21st May 2019, 11:40 AM   #3612
Numbers
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From the judgment in the ECHR case Knox v. Italy, the section on the admissibility and merits of the alleged violation of Convention Article 3. Note that because of the linkage of the issues of admissibility and merits, the ECHR considered the admissibility within the discussion of merits, as allowed under the Convention. The translation is by Google, with my help including occasional resort to Collins Reverso.

"ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION

114. The applicant complains of the alleged ill-treatment during her hearings on 6 November 2007, in particular the two slaps she allegedly received on her head. She invokes Article 3 of the Convention in this respect. She also complains that she was subjected to extreme psychological pressure on the same occasion and that she was forced to speak when she was in a situation of lack of judgment and will, which she said had undermined her right to respect for private life protected by Article 8 of the Convention.

115. The Court, as master of the legal characterization of the facts, finds that these complaints are identical and considers it appropriate to examine the applicant's allegations solely in terms of Article 3 of the Convention (Bouyid v. Belgium [GC], No. 23380/09, § 55, ECHR 2015, and Radomilja and Others v. Croatia [GC], Nos. 37685/10 and 22768/12, March 20, 2018). This article reads:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. Admissibility

116. The Government submitted firstly that the applicant had failed to exhaust domestic remedies because she had not lodged any complaint with the public prosecutor or the civil authorities. According to it, the applicant could also have complained of the pressure she claimed to have suffered at the time of her hearing {the interrogations of November 6, 2007} or of the hearing validating her arrest before the preliminary-investigation judge.

117. The applicant claims to have denounced the treatment she allegedly suffered several times during the proceedings, in particular during the hearings, including that of 13 March 2009 {during the proceedings before the Massei court}.

118. The Court considers that the central issue in the present case is closely linked to the substance of the complaints raised by the applicant, especially as to whether the applicant benefited from an effective investigation, as required by Article 3 of the Convention. Therefore, it decides to join this objection to the merits.

119. It considers, in the light of all the arguments of the parties, that these complaints raise serious issues of fact and law that can not be resolved at this stage of the examination of the application, but require examination in the merits. It follows that these complaints can not be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground of inadmissibility has been raised.

B. On the merits

1. Arguments of the parties

120. The applicant submits that her acquittal in the proceedings for false accusations against the police and the public prosecutor is evidence that her statements made during the hearings concerning the pressure and ill-treatment she claimed to have suffered were in no way false accusations and corresponded to the reality of the facts. She indicates that several passages in the judgment of the Court of Appeal of 3 October 2011, among others, confirm it (see paragraphs 84-85 above).

121. As to the blows on her head that the complainant alleges to have been inflicted on her, the Government submits firstly that, during her hearing on 13 June 2009, the applicant herself admitted that she had not been subjected to inhuman or degrading treatment. It states that the applicant stated that the police officer who inflicted the blows did not really hurt her physically but frightened her (see paragraph 76 above).

122. The Government goes on to say that the national authorities were aware that the applicant's interviews by the police had been slightly stressful for the applicant. It stated that the national authorities had, however, considered that this had not affected the latter's will and self-determination: the applicant's behavior in performing gymnastic exercises and spontaneously appearing at the police station had shown that that she was sufficiently capable of providing useful information. The Government submits that the statements of 6 November 2007 were the result of a deliberate and conscious choice made by the applicant and that there was no coercion of such a nature as to induce her to make the statements in question in this case.

2. The Court's assessment

123. As regards the prohibition of inhuman or degrading treatment, guaranteed by Article 3 of the Convention, the general principles concerning the material and procedural aspects of this complaint are recalled in Bouyid (cited above, §§ 81-90 and 114-123).

124. In examining the procedural aspect of the applicant's complaint, the Court observes that, the text drafted for the police at approximately 1 pm on 6 November 2007, only a few hours after the incriminating statements made by the applicant against D.L., clearly described the state of shock and extreme confusion in which she had been {at the relevant time} (see paragraph 20 above).

125. The applicant stated that she was not able to distinguish what appeared to her to be the reality of the facts, namely that, on the night of the murder, she had stayed with R.S. at his home, from another representation of the facts, in which she saw D.L. as being the person responsible for the offense, and to which representation she would have come because of pressure, threats of incarceration, slaps on her head and shouting directed at her by the police, in a general climate of fear and anguish.

126. The Court also notes that two days later, at the validation hearing of her arrest on 8 November 2007, the applicant immediately described her extreme state of confusion, the unreliability of her statements and the impairment of her ability of self-determination that she had suffered.

127. The Court notes that this state of confusion is apparent from the two minutes {reports or verbatim records; Memoriales 1 and 2} relating to the incriminating statements. The applicant states indeed that she has difficulty remembering the facts and remembers only in a confused manner that D. L. had killed M.K. (paragraph 15, paragraph 3 above). The applicant further states that her thoughts were very confused, so that she was unable to recall the unfolding events because she was in shock. The Court observes that the applicant was therefore according limited to maintaining that, at the material time, she "imagined" what could have happened and that she had encountered D.L. (paragraph 16, points 2 and 3 above).

128. At the hearing on 17 December 2007, the evidence concerning the alleged modalities of her interrogation is clear and consistent with the text she drafted on 6 November 2007, including the slaps she allegedly received on the head twice. The Court observes that, on that occasion, the applicant also stated that she was deprived of sleep until she had accused D.L. and complained of the restricted selection of food which had been offered to her during the hours in question.

129. Moreover, the extreme emotional shock suffered by the applicant during the hearings is mentioned in her testimony and that of A.D. of 13 March 2009. The applicant stated, among other things, that she had been treated in an aggressive and offensive manner and that she had been slapped, circumstances which she described in the same terms at the hearings on 12 and 13 June 2009 and that she consistently denounced later in her appeal {of the first instance judgment} and in her appeals to the Supreme Court of Cassation (paragraphs 82-83, 86 and 95 above).

130. The Court observes that, in its judgment of 3 October 2011, the Court of Appeal also emphasized the excessive length of the interrogations, the applicant's vulnerability and the psychological pressure suffered by her, a pressure which was likely to compromise the spontaneity of her statements, as well as her state of oppression and stress. It considered that the applicant had, in fact, been in a real torment, resulting in an unbearable psychological situation from which, in order to extricate herself, she had made incriminating statements in respect of D.L. (see paragraph 85 (8) and (10) above).

131. Moreover, the Court can not overlook, on the one hand, the confusion of the roles which characterized the activity of the interpreter A.D., who was acting both as a "mediator", which was in no way required as part of her function (paragraph 103 points 10-12 above).

132. On the other hand, it notes that R.I., a police officer, had taken the applicant in his arms, caressed her and took her hands in his, thus adopting clearly inappropriate behavior, particularly when it considers that, in the context thus described, the applicant had made accusations subsequently classified as malicious false accusation and leading to her conviction (see paragraphs 38 and 103, paragraph 5 above).

133. In the Court's opinion, this conduct, providing information as to the general context in which the applicant's {interrogation} hearing took place, should have alerted the national authorities to the possible undermining of the dignity of the applicant and her capacity for self-determination.

134. In that context, it should be noted that the minutes of the statements at issue are very succinct, that they do not indicate the start or end time of the hearings and that they therefore do not faithfully represent the investigators' activities (see paragraph 103 and paragraph 7 above).

135. Having regard to all of those circumstances, the Court considers that the facts complained of by the applicant give rise to an arguable claim that she was subjected to degrading treatment while she was entirely under the control of the police, attaining the minimum seriousness required to fall under Article 3 of the Convention (Poltoratski v. Ukraine, No. 38812/97, §§ 125-128, ECHR 2003-V).

136. This provision required that an effective official inquiry be conducted in the present case, in order to lead to the identification and punishment of those who may be responsible. In that regard, the Court can only find that, despite the applicant's repeated complaints, the treatment she denounced was not the subject of any investigation (Kaçiu and Kotorri v. Albania, nos. and 33194/07, § 94, 25 June 2013, see also the findings of the Perugia court in its judgment of 22 March 2013, paragraph 101). It notes in particular that the request for transmission of the {court} documents to the prosecution made by the applicant's defense on 13 March 2009 remained unanswered (paragraph 47).

137. The Court further notes that, as a result of that hearing {before the Massei court}, the applicant herself was the subject of criminal proceedings for malicious false accusations {again, but} this time, against the authorities whom she had accused of causing the infringement of her rights protected by Article 3 of the Convention. It observes that, at the end of that proceedings {for malicious false accusations against the authorities}, the applicant was also acquitted, since there was no evidence that her allegations deviated from the reality of the facts. The Court also notes that, obviously, this latter proceedings {being a criminal trial of the applicant} could not constitute an effective inquiry, required by Article 3 of the Convention, concerning the complaints which the applicant raises before the Court.

138. It must therefore be concluded that the applicant did not benefit from an investigation capable of clarifying the facts and possible responsibilities in this case. Article 3 of the Convention, under its procedural limb, was therefore violated in this case.

139. Accordingly, the Court rejects the Government's preliminary objection of non-exhaustion of domestic remedies.

140. With regard to the substantive limb of Article 3 within the complaint, the Court considers that it lacks elements of evidence to show that the applicant has been subjected to the inhuman and degrading treatment of which she complains. It therefore concludes that there is no violation of Article 3 of the Convention in its substantive limb."

Last edited by Numbers; 21st May 2019 at 11:44 AM.
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Old 21st May 2019, 05:46 PM   #3613
Stacyhs
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Quote:
139. Accordingly, the Court rejects the Government's preliminary objection of non-exhaustion of domestic remedies.
I'm sure the GC will rectify the situation once Quennell and his wannabe arm chair legal eagles over on TJMK explain it to them.
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Old 21st May 2019, 06:56 PM   #3614
Numbers
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Originally Posted by Stacyhs View Post
I'm sure the GC will rectify the situation once Quennell and his wannabe arm chair legal eagles over on TJMK explain it to them.
No doubt the ECHR is awaiting their input.
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Old 21st May 2019, 09:28 PM   #3615
Numbers
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Originally Posted by Stacyhs View Post
I'm sure the GC will rectify the situation once Quennell and his wannabe arm chair legal eagles over on TJMK explain it to them.
Any who wish to know more about relevant ECHR case-law, specifically, the general principles formulated by the Grand Chamber on judging an allegation of an unfair trial as a result of the use of statements obtained during the interrogation of a suspect without a lawyer (violation of Convention Articles 6.1 with 6.3c), should review, among other cases, Beuze v. Belgium [GC] 71409/10 09/11/2018, paragraphs 119 - 150.

Here's the text of the first and last paragraphs in the above-referenced case-law.

"119. The Court reiterates that the protections afforded by Article 6 §§ 1 and 3 (c), ..., apply to a person subject to a “criminal charge”, within the autonomous Convention meaning of that term. A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see Ibrahim and Others, cited above, § 249, and Simeonovi, cited above, §§ 110-11, and the case-law cited therein).
....

150. When examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings, the following non-exhaustive list of factors, drawn from the Court’s case-law, should, where appropriate, be taken into account (see Ibrahim and Others, cited above, § 274, and Simeonovi, cited above, § 120):

(a) whether the applicant was particularly vulnerable, for example by reason of age or mental capacity;

(b) the legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with – where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair;

(c) whether the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use;

(d) the quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion;

(e) where evidence was obtained unlawfully, the unlawfulness in question and, where it stems from a violation of another Convention Article, the nature of the violation found;

(f) in the case of a statement, the nature of the statement and whether it was promptly retracted or modified;

(g) the use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case;

(h) whether the assessment of guilt was performed by professional judges or lay magistrates, or by lay jurors, and the content of any directions or guidance given to the latter;

(i) the weight of the public interest in the investigation and punishment of the particular offence in issue; and

(j) other relevant procedural safeguards afforded by domestic law and practice."

We can see where the Chamber judgment applies (or perhaps does not apply) the above in Knox v. Italy.

For example, with respect to the principles of paragraph 119, the Chamber "wonders" or speculates that Knox was a suspect from the moment her questioning began in the corridor of the police station on 6 November, based on that questioning and the many previous hours she had been questioned prior to 6 November, but, for the sake of argument and perhaps of agreement with the domestic ruling, points out that she was clearly a suspect at the beginning of the second interrogation of 6 November 2007 which terminated around 5:45 am. Yet, she was not formally assigned a lawyer (one that apparently never came to see her; the prosecutor had ordered her held incommunicado until 8 November 2007 [the date of her arrest hearing], a point neglected by the Chamber judgment) until 8:30 am on 6 November.

Regarding the principles of paragraph 150, the Chamber judgment finds that:

(a) Knox was vulnerable because of her age, recent arrival in Italy, and lack of fluent knowledge of the Italian language;

(b) the legal framework unfairly did not exclude her statements because they were themselves considered an offense (the crime of calunnia - malicious false accusation) because of CSC rulings;

(c) Knox clearly had the opportunity to oppose the use of her statements and challenge their reliability or authenticity

(d) the quality of the evidence was deficient and the circumstances in which it was obtained demolished its reliability; the Chamber judgment did not state that the Italian authorities would have known, on the basis of DNA evidence from Kercher's room, clothing and body, that Knox's statements incriminating Lumumba in the murder/rape of Kercher were false on or about 8 November 2007;

(e) although not discussed by the Chamber judgment, the evidence may have been obtained unlawfully, as suggested by the Italian authorities charging Knox with committing calunnia against them (the legal definition of calunnia being to knowingly falsely accuse someone of acts that are crimes under Italian law); the Chamber acknowledged that Knox had credibly accused those Italian authorities of a violation of Convention Article 3 that should have been investigated, but that investigation was vigorously avoided by the Italian authorities and judicial system, leading to a violation of Article 3 under its procedural limb, with insufficient elements of evidence, in the Chamber's view, to conclude beyond a reasonable doubt that there had been a violation of Article 3 under its substantive limb;

(f) according to the Chamber judgment, Knox retracted or modified her statement as of about 1 pm on 6 November, and consistently maintained that retraction throughout the proceedings;

(g) according to the Chamber judgment, Knox's interrogation statements of 6 November were the only evidence of her alleged crime of calunnia against Lumumba, and indeed were the crime, and were the sole basis for Italy convicting her of calunnia against Lumumba.

Last edited by Numbers; 21st May 2019 at 09:31 PM.
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Old Yesterday, 08:59 AM   #3616
Bill Williams
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Originally Posted by Numbers View Post
No doubt the ECHR is awaiting their input.
I know I am.
__________________
In a thread titled "Who Killed Meredith Kercher?", the answer is obvious. Rudy Guede and no one else.
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Old Yesterday, 09:35 AM   #3617
Stacyhs
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Originally Posted by Bill Williams View Post
I know I am.
Good news, Bill! You don't have to wait! You can go to TJMK Front Page and read it now. You can be one of a handful who have.
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Old Yesterday, 09:49 AM   #3618
Numbers
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Originally Posted by Stacyhs View Post
Good news, Bill! You don't have to wait! You can go to TJMK Front Page and read it now. You can be one of a handful who have.
But shouldn't we wait for the official acknowledgement of assistance from the ECHR?
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Old Yesterday, 10:25 AM   #3619
Stacyhs
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Originally Posted by Numbers View Post
But shouldn't we wait for the official acknowledgement of assistance from the ECHR?
That could take years. Why deny yourself the pleasure now? Did you wait for the Marasca Motivation Report to come out on Sept. 7 before enjoying their acquittal decision made on March 27, 2015?
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Old Yesterday, 06:25 PM   #3620
Numbers
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Originally Posted by Stacyhs View Post
That could take years. Why deny yourself the pleasure now? Did you wait for the Marasca Motivation Report to come out on Sept. 7 before enjoying their acquittal decision made on March 27, 2015?
Actually, I am gaining pleasure right now in re-reading THE GENERAL PRACTICE
FOLLOWED BY THE PANEL OF THE GRAND CHAMBER WHEN DECIDING ON REQUESTS FOR REFERRAL IN ACCORDANCE WITH ARTICLE 43 OF THE CONVENTION
.

At this moment, I am enjoying this paragraph:

"The members of the Panel consider whether the case warrants referral to the Grand Chamber on the grounds that it is exceptional as indicated in the text of Article 43. They do not seek to impose their views on the merits of the case, nor do they vote to refer a case because they disagree with the Chamber’s reasoning or would themselves have voted differently. The members of the Panel thus do not assess the merits of the case but, as in national leave-to-appeal procedures, express views as to whether the case should be referred to the Grand Chamber because it meets the statutory criteria set out above. Disagreement on issues of fact, on the inferences to be drawn from the facts and/or, for instance, on the point at which, in the particular circumstances of the case, the fair balance between conflicting rights should have been struck does not necessarily mean that the conditions for referral are met. Indeed, the Grand Chamber should not be seen as an appeal court whose function is to correct alleged errors of fact or of assessment of the various features of each individual case. The intervention of the Grand Chamber is instead limited to cases which, by their nature and by the nature of their legal, social and political implications, are capable of having a serious impact on the extent and scope of the protection afforded by the Convention."

I also derive pleasure from the following paragraphs in the Practices of the GC Panel:

"It should not be overlooked, however, that the Panel and the Grand Chamber are separate and differently composed bodies. Their evaluation of the importance of a case from a case-law or policy perspective may therefore be different. Thus, it is quite conceivable that the Panel’s reasons for referral may not be followed by the majority of the Grand Chamber (which may, for instance, decide simply to confirm the Chamber judgment).

It follows that the Panel’s practice cannot be inferred only from the Grand Chamber’s reasoning and that the analysis should be extended to the parties’ requests for referral. When such requests have been accepted, it may be assumed that the Panel has, at least partly, accepted the Government’s or applicant’s arguments."

Last edited by Numbers; Yesterday at 06:30 PM.
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