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

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Old 10th April 2021, 10:14 AM   #401
Rolfe
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Originally Posted by Myriad View Post
Ah yes,

horse apples
fool's gold
Rocky Mountain oysters
long pig
horned toad
shooting star
virtual reality
judicial fact

I love these phrases where the initial adjective is really a synonym for "not."

Not touching that with a bargepole.
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Old 10th April 2021, 04:50 PM   #402
Numbers
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Originally Posted by LondonJohn View Post
After all this time..... you still don't know (or understand?) what the ECHR does?

No, the ECHR is not a supranational court. It cannot superimpose legal judgements upon signatory states.

But

It can - and does (and did in the Knox matter) - request remedies from signatory states. In this instance, it has requested that Italy revises Knox's case without using any evidence which is linked to the abuses of Knox's human rights. In practice, therefore, the ECHR is requesting that Italy revises Knox's case with the removal of her 1.45am and 5.45am statements, since these were obtained via a breach of Knox's human rights. And in turn, this means the ECHR is more-or-less requesting that Italy acquits Knox without retrial.

Now, Italy is perfectly constitutionally able to disregard the ECHR request. But such a denial could bring with it certain unwelcome ramifications. It could result in Italy being removed as a signatory state of the European Convention on Human Rights, and it could result in Italy being "disinvited" from the Council of Europe.

So Italy will need to decide what it prefers. Though frankly - as I said in my previous post - even if it chooses to deny the ECHR request, the ECHR adjudication itself has already made a mockery of Knox's criminal slander conviction, since it's now officially self-evident that the entire basis for the conviction was evidence obtained in breach of Knox's human rights.


(I mean, many of us here knew this a very long time ago, and have written about it many times. The ECHR adjudication has validated our opinions entirely, for precisely the same reasons. It's just that a small number of people with agendas and preconceptions apparently needed to believe that Knox just had to have been evil in some way, right?! And it seems like the ECHR adjudication went in one ear and out the other for many - if not all - of those people...)
Originally Posted by AnimalFriendly View Post
Thank you, LondonJohn, this synopsis is very helpful. I'm wondering if you - or Numbers - knows...has Italy ever refused to comply with any of the (many) ECHR requests against it re: other cases? If they never move to acquit Knox without trial - would this be a 1st?
Responding first to AnimalFriendly:

1. As far as I can tell from the HUDOC EXEC database, Italy has never refused to comply with an ECHR final judgment. However, that does not mean that it has responded or complied as quickly as some other states (such as the UK, France, or Germany) to ECHR final judgments.

2. So if Italy never followed through on the ECHR final judgment in Knox v. Italy, that would most likely be a first. Note, however, that it has indeed started the process of responding to the judgment - it has paid the Just Satisfaction and, in its preliminary communication, Italy has acknowledged the ECHR verdict finding that Italy had violated Knox's rights exactly as declared in the ECHR judgment.

Responding to LondonJohn:

According to the Italian Constitution, as interpreted by the Italian Constitutional Court - the supreme authority in Italy on the Italian Constitution (which is a written constitution), Italy MUST obey the final judgments of the ECHR. To not obey an ECHR final judgment, according to the Italian Constitutional Court, as I read their decision in their English translation, would be a violation of Article 117 of the Italian Constitution and, with respect to the ECHR declaring a violation of Article 6 of the Convention, a violation of Article 111 of the Italian Constitution. That is because Article 117 requires that Italian law obey the Convention, including Article 46 of the Convention requiring that each state party to the Council of Europe obey the final judgments of the ECHR, while Article 111 requires that the rights of the defense be respected.

The Italian Constitutional Court case addressing this issue is Decision Number 113 of 2011. The Constitutional Court found that Italian law CPP Article 630 was unconstitutional because it did not include provision for the request of a revision trial on the basis of an ECHR final judgment that a conviction was unfair. Therefore, while to date the Italian Parliament has not yet rewritten CPP Article 630 to account for this Constitutional Court decision, the Italian courts must interpret CPP Article 630 to include an ECHR final judgment of an unfair conviction as a valid reason for the request of a revision trial.

From the Constitutional Court's translation of its decision:

Quote:
1. – The Bologna Court of Appeal questions the constitutionality of Article 630 of the Code of Criminal Procedure, with reference to Article 117(1) of the Constitution and Article 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms, “insofar as it does not provide for a trial to be reopened if the judgment or conviction contrasts with a final judgment of the [European] Court [of Human Rights] holding that the trial was not fair pursuant to Article 6 of the European Convention for the Protection of Human Rights”. The referring court has been requested to grant two joint applications for review concerning a conviction and sentence to a term of imprisonment, which had become 3/ 16 irrevocable. According to the lower court, the applications resulted from the finding by the European Court of Human Rights that the trial of the individual convicted was “unfair” ....

According to now settled case law, the Strasbourg Court has asserted in such cases that when a private individual has been convicted on conclusion of a trial which violated Article 6 of the Convention, the most appropriate way of remedying the violation found to have occurred involves, as a matter of principle, “a retrial or a reopening of the case, if requested” in accordance with all conditions characteristic of a fair trial ....

... [T]he Strasbourg Court considers, according to case law that is now settled, that the obligation to comply with its final judgments incumbent upon the contracting Parties under Article46(1) ECHR also entails the commitment for the contracting States to allow trials to be reopened, if requested by the interested party, whenever this may appear necessary in order to grant full redress to that person in cases in which the guarantees recognised by the Convention have been violated, particularly the right to a fair trial. This interpretation cannot be deemed to contrast with the relevant protections offered by the Constitution. In particular – without prejudice to the undoubted relevance of the values represented by the certainty and stability of a res iudicata– the provision for the setting aside of the related exclusionary effects in cases involving particularly serious infringements – such as those ascertained by the Strasbourg Court, having regard to the judicial proceedings as a whole – of the guarantees relating to fundamental human rights cannot be regarded as unconstitutional. With particular reference to the provisions of Article 6 of the Convention, these guarantees are moreover largely confirmed under the current text of Article 111 of the Constitution. On the other hand, the lower court specified Article 630 of the Code of Criminal Procedure – not unjustifiably – as the provision in respect of which the Court is requested to take action. Indeed, out of all the institutions currently available under the law of criminal procedure, review {revision trial} – which entails the reopening of the trial as an extraordinary ground for appeal of a general nature, implying a resumption of procedural activities addressing the merits of the case, including also the discovery of evidence – is that which most closely resembles the remedy which it appears necessary to introduce in order to guarantee that the national legal order complies with the principle invoked.
Sources:

https://www.cortecostituzionale.it/d...2011113_en.pdf

https://www.senato.it/documenti/repo...ne_inglese.pdf

Last edited by Numbers; 10th April 2021 at 04:55 PM.
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Old 10th April 2021, 06:04 PM   #403
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Amanda said she is still seeking to have the calunnia judgment rectified but that it is 'very expensive'. Since the ECHR has found in her favor, I would think that all she has to do is have her lawyers file a request for a revision trial. That would involve the cost of the lawyers filing the court fees of the request and their time. Since her statements from Nov. 5/6 cannot be used and in her memorial she does actually say she's unsure of anything she said and she makes no accusation, I doubt there would actually be a trial. What am I missing that could be so expensive?
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Old 10th April 2021, 07:14 PM   #404
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Originally Posted by Stacyhs View Post
Amanda said she is still seeking to have the calunnia judgment rectified but that it is 'very expensive'. Since the ECHR has found in her favor, I would think that all she has to do is have her lawyers file a request for a revision trial. That would involve the cost of the lawyers filing the court fees of the request and their time. Since her statements from Nov. 5/6 cannot be used and in her memorial she does actually say she's unsure of anything she said and she makes no accusation, I doubt there would actually be a trial. What am I missing that could be so expensive?
I wondered about that as well when I heard her statement in her YouTube talk.

It may be that she anticipates that, without an Action Plan from Italy mentioning revision, the Italian courts would unfairly block her request for revision, and she would wind up with more legal expenses to fight that.

But it could also be that she is using the expenses as a cover for waiting Italy to present its Action Plan before she seeks revision, or is waiting for Italy to have a prosecutor file for revision, as allowed under Italian law.
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Old 10th April 2021, 09:30 PM   #405
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Here's some numbers comparing Italy to the UK, France, and Germany on their providing the Committee of Ministers with Action Plans, and the applicant with the awarded Just Satisfaction, for leading cases after ECHR final judgment. A "leading case", such as Knox v. Italy, is defined by the Committee of Ministers as a stand-alone legally significant ECHR judgment - that is, there has been at least one violation and it has not been settled by agreement between the applicant and the state. The data are current as of 10 April 2021.

1. Leading Cases Pending before the Committee of Ministers

Italy: 56
UK: 9
France: 25
Germany: 10

2. Leading Pending Cases Awaiting Action Plan

Italy: 14*
UK: 0
France: 3
Germany: 2

3. Leading Pending Cases Awaiting Just Satisfaction Payment

Italy: 6**
UK: 0
France: 4
Germany: 1

* Knox v. Italy is one of the 14 leading cases where the Committee of Ministers is awaiting Italy to supply an Action Plan

** Italy has paid the Just Satisfaction awarded to Knox by the ECHR judgment Knox v. Italy. One important case where Italy has not yet paid Just Satisfaction is Cordella v. Italy - which has at least 128 applicants (the Country Profile for Italy gives 180 as the number of applicants) - but recently the Committee of Ministers approved Italy's Action Plan. That doesn't mean the case is closed, but rather that the execution of the judgment has (presumably) begun.

Source: https://hudoc.exec.coe.int/eng#{%22EXECDocumentTypeCollection%22:[%22CEC%22]}

Last edited by Numbers; 10th April 2021 at 10:04 PM.
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Old 10th April 2021, 10:04 PM   #406
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Italy tends to drag its feet...and/or just has way more cases found against it.
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Old 11th April 2021, 04:41 AM   #407
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Here is a short video that I found useful in understanding Italy's obligations to the ECHR committee of ministers.

https://www.youtube.com/watch?v=4UybuIA5rSo&t=155s

Hoots
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Old 11th April 2021, 04:49 AM   #408
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Originally Posted by Vixen View Post
Really? You think an eye witness and prima facie suspect to a horrendous crime should just be allowed to leave the country presumably because they are American and who cares about the innocent victim in all of this?

"..the f act t hat K NOX was in the house 7 Via della Pergola at the time when young Meredith Kercher was killed constitutes a fact of absolute and indisputable certainty.
Martuscelli,Masi, F avi – Florence Court 10 Feb 2017
"
Yet no narrative and timeline exists that would make sense of it.

Hoots
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Old 11th April 2021, 05:36 AM   #409
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Originally Posted by TomG View Post
Here is a short video that I found useful in understanding Italy's obligations to the ECHR committee of ministers.

https://www.youtube.com/watch?v=4UybuIA5rSo&t=155s

Hoots
TomG, Thanks for posting that link.

That YouTube video (now available in 30 languages) was prepared by the Council of Europe - Committee of Ministers - Department for the Execution of Judgments of the ECHR.

The video and much further information can be accessed at their website:

https://www.coe.int/en/web/execution

By following links on that website, one finds that the most urgent CoM supervised current case against Italy is not Knox v. Italy but rather Cordella v. Italy, a case about dangerous air pollution negatively affecting the health of hundreds or even thousands of Italians, which the CoM has placed on "enhanced supervision" - meaning, urgently discussed at each of the recent quarterly meetings on execution of judgments. Knox v. Italy and the vast majority of cases are under "standard supervision".

By a link on that site, one can find a list of links to the Action Plans submitted by Italy; 74 are listed. No Action Plan for Knox v. Italy is yet listed there.

https://search.coe.int/cm#title=Acti...%7D%5D%7D#s=51

Last edited by Numbers; 11th April 2021 at 05:48 AM.
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Old 11th April 2021, 07:04 AM   #410
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Originally Posted by Stacyhs View Post
Amanda said she is still seeking to have the calunnia judgment rectified but that it is 'very expensive'. Since the ECHR has found in her favor, I would think that all she has to do is have her lawyers file a request for a revision trial. That would involve the cost of the lawyers filing the court fees of the request and their time. Since her statements from Nov. 5/6 cannot be used and in her memorial she does actually say she's unsure of anything she said and she makes no accusation, I doubt there would actually be a trial. What am I missing that could be so expensive?
Originally Posted by Numbers View Post
I wondered about that as well when I heard her statement in her YouTube talk.

It may be that she anticipates that, without an Action Plan from Italy mentioning revision, the Italian courts would unfairly block her request for revision, and she would wind up with more legal expenses to fight that.

But it could also be that she is using the expenses as a cover for waiting Italy to present its Action Plan before she seeks revision, or is waiting for Italy to have a prosecutor file for revision, as allowed under Italian law.
Here's the text of CPP Article 630, Revision, including a note on the Constitutional Court's Decision No. 113 of 2011:

Quote:
Art. 630.

Casi di revisione

1. La revisione puo' essere richiesta:

a) se i fatti stabiliti a fondamento della sentenza o del decreto penale di condanna non possono conciliarsi con quelli stabiliti in un'altra sentenza penale irrevocabile del giudice ordinario o di un giudice speciale;

b) se la sentenza o il decreto penale di condanna hanno ritenuto la sussistenza del reato a carico del condannato in conseguenza di una sentenza del giudice civile o amministrativo, successivamente revocata, che abbia deciso una delle questioni pregiudiziali previste dall'articolo 3 ovvero una delle questioni previste dall'articolo 479;

c) se dopo la condanna sono sopravvenute o si scoprono nuove prove che, sole o unite a quelle gia' valutate, dimostrano che il condannato deve essere prosciolto a norma dell'articolo 631;

d) se e' dimostrato che la condanna venne pronunciata in conseguenza di falsita' in atti o in giudizio o di un altro fatto previsto dalla legge come reato. ((187))

---------------

AGGIORNAMENTO (187)

La Corte Costituzionale, con sentenza 4 - 7 aprile 2011, n. 113 (in G.U. 1a s.s. 13/4/2011, n. 16), ha dichiarato "l'illegittimita' costituzionale dell'art. 630 del codice di procedura penale, nella parte in cui non prevede un diverso caso di revisione della sentenza o del decreto penale di condanna al fine di conseguire la riapertura del processo, quando cio' sia necessario, ai sensi dell'art. 46, paragrafo 1, della Convenzione per la salvaguardia dei diritti dell'uomo e delle liberta' fondamentali, per conformarsi ad una sentenza definitiva della Corte europea dei diritti dell'uomo".
Google translation with my help:

Quote:
Art. 630.

Cases of Revision

1. The revision can be requested:

a) if the facts established as the basis of the sentence or the criminal decree of conviction cannot be reconciled with those established in another irrevocable criminal sentence of the ordinary judge or of a special judge;

b) if the sentence or the criminal decree of conviction considered the existence of the crime against the offender as a result of a sentence of the civil or administrative judge, subsequently revoked, which decided one of the preliminary questions provided for by {CPP} Article 3 or one of the matters referred to in {CPP} Article 479;

c) if after the conviction new evidence arises or is discovered which, alone or combined with that already evaluated, demonstrates that the convicted person must be acquitted in accordance with {CPP} Article 631;

d) if it is proven that the sentence was pronounced as a consequence of falsification of facts or in court {proceedings} or of another act considered under the law as {constituting} a crime. ((187))

---------------

UPDATE (187)

The Constitutional Court, in its Decision of 4 - 7 April 2011, n. 113 (in GU 1a ss 13/4/2011, n. 16), declared "the constitutional illegitimacy of Art. 630 of the Code of Criminal Procedure {CPP}, in the part in which it does not provide for a specific case allowing revision of the sentence or of the criminal conviction decree in order to achieve the reopening of the trial, when this is necessary, pursuant to Art. 46, paragraph 1, of the Convention for the Protection of Human Rights and Fundamental Freedoms, to comply with a final judgment by the European Court of Human Rights ".
And here is the law on who may request a revision trial for a conviction:

Quote:
Art. 632.

Soggetti legittimati alla richiesta

1. Possono chiedere la revisione:

a) il condannato o un suo prossimo congiunto ovvero la persona che ha sul condannato l'autorita' tutoria e, se il condannato e' morto, l'erede o un prossimo congiunto;

b) il procuratore generale presso la corte di appello nel cui distretto fu pronunciata la sentenza di condanna. Le persone indicate nella lettera a) possono unire la propria richiesta a quella del procuratore generale.
Google translation with my help:

Quote:
Art. 632.

Entities entitled to request revision

1. The following may request a revision:

a) the convicted person or a close relative or the person who has the guardianship authority over the convicted person and, if the convicted person is dead, the heir or a close relative;

b) the Attorney General at the Court of Appeal in whose district the conviction was pronounced. The persons indicated in letter a) can combine their request with that of the Attorney General.
Source:

https://www.studiocataldi.it/codicep.../revisione.asp
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Old 11th April 2021, 08:21 AM   #411
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Do the States of of the Council of Europe, an international human rights organization founded by a treaty binding those States, and which is the parent of the ECHR and the Committee of Ministers (CoM), care about human rights? Specifically, what is the CoM record for Italy, the respondent State in Knox v. Italy, which has an article (Article 117), in its written Constitution stating that Italian law must follow international law?

First, here's the relevant text of Article 117, in the English translation provided by the Italian Senate:

Art. 117

Legislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from EU legislation and international obligations.

Also, here's some other interesting relevant Italian constitutional provisions (from the Italian Senate's translation):

Art. 10

The Italian legal system conforms to the generally recognised principles of international law.

Art. 13

Personal liberty is inviolable. ....

Any act of physical and moral violence against a person subjected to restriction of personal liberty shall be punished.

Art. 24

Defense is an inviolable right at every stage and instance of legal proceedings.

Now, here's a comparison of Italy's record of final judgment ECHR cases (current and historical) before the Committee of Ministers (CoM) in comparison to that of the UK.

Total cases (current and historical) before the CoM

Italy: 4263
UK: 451

Closed cases (The State has satisfied all the CoM's requirements that the terms of the ECHR judgment were met)

Italy: 4076
UK: 437

Open Cases, Standard Supervision

Italy: 102
UK: 6

Open Cases, Enhanced Supervision

Italy: 81
UK: 6

Open Cases, New (Supervision TBD)

Italy: 4
UK: 2
---------------------

Total Cases (Current and Historical) by Assignment to Leading, Repetitive, or Settlement Classification (Totals are: Italy, 4263 and UK, 451)

Leading

Italy: 214
UK: 206

Repetitive

Italy: 3909
UK: 192

Friendly Settlement (the State does not contest the Applicant's allegations and offers redress)

Italy: 144
UK: 38

Friendly Settlement with Undertakings (CoM/ECHR conditions imposed on the State)

Italy: 8
UK: 4
--------------------

Comments: Italy has had many more cases in total than the UK. However, the number of Leading cases is nearly identical (Italy has had 8 more than the UK). Where Italy really has exceeded the UK is in the number of Repetitive cases. These are cases where the violations are essentially identical to those in a Leading case, so that the actions required to redress the violations for each Repetitive case are essentially identical to those for a specific Leading case, with, of course, the provision that the affected individuals - the victims of the violations - are different persons.

Knox v. Italy is a current pending Leading case before the CoM. Italy has paid the required Just Satisfaction to Knox, and has communicated to the CoM that it has translated the ECHR judgment and distributed it to the relevant courts. Italy has not yet provided the required Action Plan, outlining the Individual and General Measures required to satisfy the CoM as required by Italy's treaty obligations, which it is required to follow under its written Constitution.

Sources:

https://www.senato.it/documenti/repo...ne_inglese.pdf

https://hudoc.exec.coe.int/eng#{%22EXECDocumentTypeCollection%22:[%22CEC%22],%22EXECLanguage%22:[%22ENG%22],%22EXECState%22:[%22GBR%22]}

https://hudoc.exec.coe.int/eng#{%22EXECDocumentTypeCollection%22:[%22CEC%22],%22EXECLanguage%22:[%22ENG%22],%22EXECState%22:[%22ITA%22]}

Last edited by Numbers; 11th April 2021 at 08:34 AM.
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Old 11th April 2021, 10:40 AM   #412
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Originally Posted by Vixen
"..the f act t hat K NOX was in the house 7 Via della Pergola at the time when young Meredith Kercher was killed constitutes a fact of absolute and indisputable certainty.
Martuscelli,Masi, F avi – Florence Court 10 Feb 2017"
Originally Posted by TomG View Post
Yet no narrative and timeline exists that would make sense of it.

Hoots
In those two statements hangs everything to do with this case.

The difficulty with the Martuscelli quote is **finally** put into perspective by the 2015 acquitting court, the Italian Supreme Court.

All that Court did was put the Martuscelli pronouncement into the frame that, even if that was true, it still didn't make up for a lack of evidence of either Knox or Sollecito in the murder room. Then, continuing with the logical conclusion that must be drawn.....

.... the 2015 Court determined that at best, at best, all the actual evidence demonstrated was that they'd been in the cottage **after** the murder, as well as in some other place than the murder room. (Which no one denies, not even the most stubborn Sollecito/Knox defender.)

So strangely, for those who cling to the "judicial fact", as averred by Martuscelli, that they'd been there during the murder, the real facts actually show the opposite.

It's why no one, no one, has ever put a timeline to Martuscelli's certainty. Never. Turns out, according to the eventual acquitting Court, there's a reason for that.
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Old 11th April 2021, 11:48 AM   #413
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Originally Posted by Stacyhs View Post
Amanda said she is still seeking to have the calunnia judgment rectified but that it is 'very expensive'. Since the ECHR has found in her favor, I would think that all she has to do is have her lawyers file a request for a revision trial. That would involve the cost of the lawyers filing the court fees of the request and their time. Since her statements from Nov. 5/6 cannot be used and in her memorial she does actually say she's unsure of anything she said and she makes no accusation, I doubt there would actually be a trial. What am I missing that could be so expensive?

I'd suspect that it's because a) Italy clearly has no appetite to be complying with the ECHR remedy request, b) it's therefore Knox's lawyers who would have to be badgering Italy about doing something if they (Knox and her lawyers) actually want anything to be done), and c) even a legal letter from lawyers at the level of those whom Knox has on retainer will cost upwards of $250.

In other words: Knox feels that she'll only make progress towards getting Italy to act if she herself (through her lawyers) pushes the case, yet the act of getting her lawyers to push the case is costing her a not-insignificant amount of money.

I'd imagine it would be worryingly easy for Knox to run up another $1,000 in legal fees in (almost) the blink of an eye, when/if she's proactive on this matter. And I genuinely wouldn't be surprised if Italy - being Italy - has factored this in, and hopes that its prevarication and procrastination, coupled with the impact of legal fees upon Knox's personal finances, will somehow make this problem "go away"....
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Old 11th April 2021, 12:20 PM   #414
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Originally Posted by LondonJohn View Post
I'd suspect that it's because a) Italy clearly has no appetite to be complying with the ECHR remedy request, b) it's therefore Knox's lawyers who would have to be badgering Italy about doing something if they (Knox and her lawyers) actually want anything to be done), and c) even a legal letter from lawyers at the level of those whom Knox has on retainer will cost upwards of $250.

In other words: Knox feels that she'll only make progress towards getting Italy to act if she herself (through her lawyers) pushes the case, yet the act of getting her lawyers to push the case is costing her a not-insignificant amount of money.

I'd imagine it would be worryingly easy for Knox to run up another $1,000 in legal fees in (almost) the blink of an eye, when/if she's proactive on this matter. And I genuinely wouldn't be surprised if Italy - being Italy - has factored this in, and hopes that its prevarication and procrastination, coupled with the impact of legal fees upon Knox's personal finances, will somehow make this problem "go away"....
My own experience with more trivial legal matters suggests that those numbers are hopelessly low. And I don't live in Italy, in which legal cases are not sprints, they are marathons.

It's not so much that your quotes are inaccurate, it's what they lead to which can lead to cutting a hole into the sky into which you pour money. If you start, you have to finish..... it's what the expenditure of $250 or $1,000 leads to, and if you're not into it whole hog, there's no point beginning.

Add to this that the cash has to be upfront. If there's some sizable reward available at the end of this, Sollecito's experience was that (despite being innocent) Italy was going to blame him for the ordeal, even as an innocent person.
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Old 11th April 2021, 02:07 PM   #415
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Originally Posted by Bill Williams View Post
My own experience with more trivial legal matters suggests that those numbers are hopelessly low. And I don't live in Italy, in which legal cases are not sprints, they are marathons.

It's not so much that your quotes are inaccurate, it's what they lead to which can lead to cutting a hole into the sky into which you pour money. If you start, you have to finish..... it's what the expenditure of $250 or $1,000 leads to, and if you're not into it whole hog, there's no point beginning.

Add to this that the cash has to be upfront. If there's some sizable reward available at the end of this, Sollecito's experience was that (despite being innocent) Italy was going to blame him for the ordeal, even as an innocent person.
I suggest Knox's reasons for waiting are partly about the legal costs, but more likely about the problematic response of an Italian Court of Appeal in the Perugia legal district to her potential request for revision.

Recall Section 2.2 (about pages 22-23 0f the translation) of the Marasca CSC panel Motivation Report. In that Section, the text states that even a favorable judgment for Knox from the ECHR would not be able to overcome the statements she had made, falsely claiming that these statements were made, not only in her interrogation and "spontaneous declaration" but also before the GIP (the preliminary investigation judge). Therefore, the Marasca CSC panel MR predicted that no request for revision would be successful in overcoming her conviction for calunnia.

Considering that Italy's record before the ECHR and CoM as well as in this case demonstrates a strong tendency to double down on using false "judicial facts" to render unfair verdicts, it is understandable that Knox is probably waiting for Italy's Action Plan explaining how she is entitled to revision to be provided to the CoM before she has her lawyers seek revision. The potential problem with a premature attempt at obtaining revision is that if it should be denied by the Court of Appeals and by the CSC under appeal, Knox would face a long and possibly expensive delay. Her first step in reponse would be writing to the CoM to complain, and if that did not get action, her only remedy would be to initiate a new ECHR application.

So, in the interest of time, money, and justice, I believe that Knox and her lawyers are sensibly waiting to see Italy's Action Plan. It is entirely Italy's obligation under international and Italian law to provide one. Knox is under no legal obligation to seek revision within any time limit.

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Old 11th April 2021, 06:23 PM   #416
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Quote:
Recall Section 2.2 (about pages 22-23 0f the translation) of the Marasca CSC panel Motivation Report. In that Section, the text states that even a favorable judgment for Knox from the ECHR would not be able to overcome the statements she had made, falsely claiming that these statements were made, not only in her interrogation and "spontaneous declaration" but also before the GIP (the preliminary investigation judge). Therefore, the Marasca CSC panel MR predicted that no request for revision would be successful in overcoming her conviction for calunnia.

Considering that Italy's record before the ECHR and CoM as well as in this case demonstrates a strong tendency to double down on using false "judicial facts" to render unfair verdicts,
Indeed. Nowhere in GIP Matteini's report or in the hearing transcript does she claim that Amanda repeated her accusation of Lumumba. In fact, Amanda said nothing at the hearing before the judge; only Raffaele spoke as recorded in the transcript.

http://themurderofmeredithkercher.co...aring_(English)
http://themurderofmeredithkercher.co...eport_(English)

Additionally, the ECHR's strong condemnation of Amanda's failure to have a lawyer present, of her interpreter's illegal and leading actions and that they rendered the trial unfair plus the fact that the spontaneous letter includes several statements that clearly express Amanda's doubt over her memory being either accurate or reliable about Lumumba should make Marasca's provably false Judicial Fact easily overcome...even in Italy.

From the Spontaneous Letter:

1) "In regards to this "confession" (in quotes) that I made last night, I want to make clear that I'm very doubtful of the veritity [sic] of my statements because they were made under the pressures of stress, shock and extreme exhaustion. Not only was I told I would be arrested and put in jail for 30 years, but I was also hit in the head when I didn't remember a fact correctly. I understand that the police are under a lot of stress, so I understand the treatment I received.
However, it was under this pressure and after many hours of confusion that my mind came up with these answers. In my mind I saw Patrik in flashes of blurred images."

2) " I am convinced that they unsure if they are real things that happened or are just dreams my mind has made to try to answer the questions in my head and the questions I am being asked. But the truth is, I'm unsure about the truth

3) "And I stand by my statements that I made last night about events that could have taken place in my home with Patrik, but I want to make very clear that these events seem more unreal to me than what I said before, that I stayed at Raffaele's house"

4) "I know I didn't kill Meredith. That's all I know for sure. In these flashbacks that I'm having I see Patrik as the murderer, but the way the truth feels in my mind, there is no way for me to have known, because I don't remember FOR SURE if I was at my house that night."

5) "Why did I think of Patrik?" (Gee could it be because she kept being told it was him? NAAAAAH)

6) "Is there any other evidence condemming [sic] Patrik or any other person?"

7) "Who is the REAL murder [sic]? → This is particularly important because I don't feel I can be used as condemming [sic] testimone [sic] in this instance."


Regarding #6 and #7: why would a guilty person even ask those questions?

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Old 11th April 2021, 07:49 PM   #417
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Originally Posted by Stacyhs View Post
Indeed. Nowhere in GIP Matteini's report or in the hearing transcript does she claim that Amanda repeated her accusation of Lumumba. In fact, Amanda said nothing at the hearing before the judge; only Raffaele spoke as recorded in the transcript.

http://themurderofmeredithkercher.co...aring_(English)
http://themurderofmeredithkercher.co...eport_(English)

Additionally, the ECHR's strong condemnation of Amanda's failure to have a lawyer present, of her interpreter's illegal and leading actions and that they rendered the trial unfair plus the fact that the spontaneous letter includes several statements that clearly express Amanda's doubt over her memory being either accurate or reliable about Lumumba should make Marasca's provably false Judicial Fact easily overcome...even in Italy.

From the Spontaneous Letter:

1) "In regards to this "confession" (in quotes) that I made last night, I want to make clear that I'm very doubtful of the veritity [sic] of my statements because they were made under the pressures of stress, shock and extreme exhaustion. Not only was I told I would be arrested and put in jail for 30 years, but I was also hit in the head when I didn't remember a fact correctly. I understand that the police are under a lot of stress, so I understand the treatment I received.
However, it was under this pressure and after many hours of confusion that my mind came up with these answers. In my mind I saw Patrik in flashes of blurred images."

2) " I am convinced that they unsure if they are real things that happened or are just dreams my mind has made to try to answer the questions in my head and the questions I am being asked. But the truth is, I'm unsure about the truth

3) "And I stand by my statements that I made last night about events that could have taken place in my home with Patrik, but I want to make very clear that these events seem more unreal to me than what I said before, that I stayed at Raffaele's house"

4) "I know I didn't kill Meredith. That's all I know for sure. In these flashbacks that I'm having I see Patrik as the murderer, but the way the truth feels in my mind, there is no way for me to have known, because I don't remember FOR SURE if I was at my house that night."

5) "Why did I think of Patrik?" (Gee could it be because she kept being told it was him? NAAAAAH)

6) "Is there any other evidence condemming [sic] Patrik or any other person?"

7) "Who is the REAL murder [sic]? → This is particularly important because I don't feel I can be used as condemming [sic] testimone [sic] in this instance."


Regarding #6 and #7: why would a guilty person even ask those questions?
Whether a false "judicial fact" can be "easily overcome...even in Italy" may depend on the honesty of the judges hearing the case for revision and whether or not the Chief Prosecutor of the judicial district support revision.

If the Chief Prosecutor of the judicial district supports revision, I suggest the likelihood of a successful revision is vastly increased.

Recall, as pointed out by the ECHR in its judgment, that the Italian courts repeatedly ignored, with no investigation at all, each of Knox's complaints of mistreatment by the police - although any report of a crime in Italy must be investigated and, if confirmed to have occurred, prosecuted.

Recall that the Italian government argued that Knox's application to the ECHR was untimely because it was lodged before there was a final Italian court decision on the charge of aggravated calunnia against Lumumba. The ECHR found this argument without merit, since Knox had been finally convicted of "simple" calunnia, and the application was timely lodged after that final Italian court judgment.

I don't think one should assume that Italian courts function predictably. The very high number of repetitive ECHR cases against Italy that have come before the CoM shows significant dysfunction in the Italian administrative and judicial systems.
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Old 11th April 2021, 09:37 PM   #418
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Originally Posted by Stacyhs View Post
Indeed. Nowhere in GIP Matteini's report or in the hearing transcript does she claim that Amanda repeated her accusation of Lumumba. In fact, Amanda said nothing at the hearing before the judge; only Raffaele spoke as recorded in the transcript.

http://themurderofmeredithkercher.co...aring_(English)
http://themurderofmeredithkercher.co...eport_(English)

Additionally, the ECHR's strong condemnation of Amanda's failure to have a lawyer present, of her interpreter's illegal and leading actions and that they rendered the trial unfair plus the fact that the spontaneous letter includes several statements that clearly express Amanda's doubt over her memory being either accurate or reliable about Lumumba should make Marasca's provably false Judicial Fact easily overcome...even in Italy.

From the Spontaneous Letter:

1) "In regards to this "confession" (in quotes) that I made last night, I want to make clear that I'm very doubtful of the veritity [sic] of my statements because they were made under the pressures of stress, shock and extreme exhaustion. Not only was I told I would be arrested and put in jail for 30 years, but I was also hit in the head when I didn't remember a fact correctly. I understand that the police are under a lot of stress, so I understand the treatment I received.
However, it was under this pressure and after many hours of confusion that my mind came up with these answers. In my mind I saw Patrik in flashes of blurred images."

2) " I am convinced that they unsure if they are real things that happened or are just dreams my mind has made to try to answer the questions in my head and the questions I am being asked. But the truth is, I'm unsure about the truth

3) "And I stand by my statements that I made last night about events that could have taken place in my home with Patrik, but I want to make very clear that these events seem more unreal to me than what I said before, that I stayed at Raffaele's house"

4) "I know I didn't kill Meredith. That's all I know for sure. In these flashbacks that I'm having I see Patrik as the murderer, but the way the truth feels in my mind, there is no way for me to have known, because I don't remember FOR SURE if I was at my house that night."

5) "Why did I think of Patrik?" (Gee could it be because she kept being told it was him? NAAAAAH)

6) "Is there any other evidence condemming [sic] Patrik or any other person?"

7) "Who is the REAL murder [sic]? → This is particularly important because I don't feel I can be used as condemming [sic] testimone [sic] in this instance."


Regarding #6 and #7: why would a guilty person even ask those questions?
Originally Posted by Numbers View Post
Whether a false "judicial fact" can be "easily overcome...even in Italy" may depend on the honesty of the judges hearing the case for revision and whether or not the Chief Prosecutor of the judicial district support revision.

If the Chief Prosecutor of the judicial district supports revision, I suggest the likelihood of a successful revision is vastly increased.

Recall, as pointed out by the ECHR in its judgment, that the Italian courts repeatedly ignored, with no investigation at all, each of Knox's complaints of mistreatment by the police - although any report of a crime in Italy must be investigated and, if confirmed to have occurred, prosecuted.

Recall that the Italian government argued that Knox's application to the ECHR was untimely because it was lodged before there was a final Italian court decision on the charge of aggravated calunnia against Lumumba. The ECHR found this argument without merit, since Knox had been finally convicted of "simple" calunnia, and the application was timely lodged after that final Italian court judgment.

I don't think one should assume that Italian courts function predictably. The very high number of repetitive ECHR cases against Italy that have come before the CoM shows significant dysfunction in the Italian administrative and judicial systems.
For another oddity - an apparent violation of an earlier "final" CSC decision - in the Marasca CSC panel MR, consider how in Section 9.4.1, the MR shows that even if Knox were at the cottage during the murder, an acknowledged "judicial fact" within the Nencini court trial, based solely upon Knox's interrogation statement, the physical evidence merely shows she was at the cottage at some time, with no evidence at all that she had been in the murder room.

But nowhere in that long section does the MR state that the Gemelli CSC panel had early in the case ruled that Knox's rights of defense had been violated during the interrogation and Mignini's subsequent questioning, which resulted in an incriminating statement and a supposed "spontaneous declaration", respectively. Therefore, according to Italian law those two statements could not legally be used against Knox, and should not have been used against her by the Nencini court.

Again, my point is that all the evidence of the Knox - Sollecito case trials and of Italy's record before the ECHR - CoM shows that there are serious defects in how Italy conducts trials. One cannot assume that an Italian trial will necessarily reach a reasonable and just verdict, especially if a reasonable and just verdict would impugn the actions of the police and/or a prosecutor.
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Old 11th April 2021, 10:59 PM   #419
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How would a judge be able to support in a motivation report with any logic whatsoever that Amanda had accused Lumumba in front of Matteini when no such accusation exists in either the hearing transcript or the report or that she accused him again in her spontaneous letter of Nov. 6? We already know what the ECHR ruled concerning the 'unfairness' of the trial.

IMO, Marasca-Bruno was pre-empting any questioning of the prior SC definitive calunnia decision placing her in the cottage at the time of the murder. He's protecting a previous SC judgment. Nothing else makes sense because placing her in the cottage rests solely on her "confession" as there is no actual evidence putting her there at the time of the murder or even the night of the murder. Or Sollecito for that matter.
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Old 11th April 2021, 11:34 PM   #420
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Originally Posted by Stacyhs View Post
How would a judge be able to support in a motivation report with any logic whatsoever that Amanda had accused Lumumba in front of Matteini when no such accusation exists in either the hearing transcript or the report or that she accused him again in her spontaneous letter of Nov. 6? We already know what the ECHR ruled concerning the 'unfairness' of the trial.

IMO, Marasca-Bruno was pre-empting any questioning of the prior SC definitive calunnia decision placing her in the cottage at the time of the murder. He's protecting a previous SC judgment. Nothing else makes sense because placing her in the cottage rests solely on her "confession" as there is no actual evidence putting her there at the time of the murder or even the night of the murder. Or Sollecito for that matter.
I don't follow.

The definitive final calunnia conviction judgment was that given by the Hellmann Court of Appeals, which was confirmed by the Chieffi CSC panel.

I don't believe that the Hellmann court MR stated that Knox was in the cottage at the time of the murder. If it did, please cite the relevant text.

The Hellmann court MR stated that Knox's statement was a false accusation, and gave a weak argument to support that it was intentional, while ignoring the evidence in Knox's Memoriales that it was coerced (although the MR listed some of the signs of that coercion and Knox's vulnerabilities). It essentially stated that Knox made a false accusation to get away from a stressful interrogation, and that Knox should have known that Lumumba was not the murderer because he (supposedly) had never met Kercher and the police were suggesting his name.

While confirming the Hellmann court conviction for "simple" calunnia, the Chieffi CSC panel quashed the acquittal for the murder/rape charges, and in forwarding the case for retrial (remand to the Nencini Court of Appeals), instructed or suggested that the remand court reconsider the aggravating circumstances for the calunnia. The Nencini court added the aggravating charge to Knox's calunnia conviction on the (alleged) basis that she committed the calunnia to cover-up another crime (murder/rape of Kercher) committed by her and/or a second criminal, Guede.

By quashing the Nencini court conviction of Knox and Sollecito on the murder/rape charges, the Marasca CSC panel automatically quashed the Nencini conviction adding aggravating circumstances to the calunnia charge, as the Marasca CSC panel MR indicates. The "aggravating" circumstances were the alleged naming of Lumumba with the intent of covering-up another crime (the murder/rape) that was allegedly committed by Knox and Sollecito with Guede.

It would be reasonable to say that the Marasca panel verdict attacked the Chieffi panel MR in its quashing the murder/rape acquittal and in the Chieffi panel's instruction or suggestion that the aggravating circumstances for calunnia should be imposed. Section 9.4.1 of the Marasca panel MR is confusing because it ignores the most likely explanation for Knox's "calunnia" - that it was coerced by police mistreatment, as she had testified to in Massei's court and had put into each of her written appeals - all of which was ignored by each of the Italian courts that convicted her of calunnia against Lumumba.

Here's the PQR of the Marasca CSC panel MR:

Quote:
Pursuant to Article 620 letter A) Italian Code of Criminal Procedure;

annuls the ruling under appeal with respect to the crime under charge B) of the rubric because the crime is extinct due to statute of limitations;

pursuant to Articles 620 letter L) and 530, section 2 Italian Code of Criminal Procedure;

excluding the aggravating circumstance under Article 61 n. 2 Penal Code, in relation to the crime of calumny,

annuls the ruling under appeal without referral with respect to the crimes under charges A), D) and E) of the rubric because the appellants did not commit the act.

Recalculates the sentence imposed upon appellant Amanda Maria Knox for the crime of calumny in three years of confinement
The translation of the PQR would be more clear if rearranged and modified as follows:

Quote:
Pursuant to Article 620 letter A) Italian Code of Criminal Procedure;

annuls the ruling under appeal with respect to the crime under charge B) of the rubric because the crime is extinct due to the statute of limitations;

pursuant to Articles 620 letter L) and {Article} 530, section 2 Italian Code of Criminal Procedure;

annuls the ruling under appeal without referral with respect to the crimes under charges A), D) and E) of the rubric, {thereby acquitting the appellants} because the appellants did not commit the act,

{and therefore} excluding the aggravating circumstance under Article 61 n. 2 Penal Code, in relation to the crime of calumny,

Recalculates the sentence imposed upon appellant Amanda Maria Knox for the crime of calumny in three years of confinement

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Old 12th April 2021, 11:20 AM   #421
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Chieffi refers to Amanda's statement that she was in the kitchen and heard Meredith's scream several times. He criticizes Hellman's not taking it into consideration seriously enough.


Quote:
the statements of the two women who heard the screams
are facts referred to by credible and reliable witnesses, recognised as such by the same
judgment and therefore having probative value, the more so as Amanda also spoke of this scream in her statement.
Chieffi goes into great detail as to why Hellmann was wrong in not giving greater weight to the "spontaneous letter" regarding the calunnia:

Quote:
The observation of the Prosecutor General is correct with regard to the failure [of the
Hellmann Court of Appeal] to [properly] evaluate the letter written in English by Knox,
which was translated and contained in the appeal files and which was already considered
fully admissible by this Court [53] in decision no. 990/2008, it being a document coming
from the accused, who wrote the letter voluntarily and in a moment of solitude (i.e., after
the alleged pressure on the part of the investigators had ended) with the intention of
defending herself, [and] pursuant to article 237 of the Criminal Procedure Code. In this
letter, the young woman, without even wanting to clarify to herself and others the
sequence of actions carried out the evening of the crime (“perhaps I checked the emails,
perhaps I read and studied, perhaps I made love with Sollecito…”), admitted only to
having smoked marijuana, to having had a shower with Sollecito, and to having dined
very late; and then, placed herself in a dimension more dreamlike than real, writing of
having seen herself crouching in the kitchen, with her hands over her ears, because in her
head she had heard Meredith scream
, even though these things seemed like a dream and
she was not sure that what had appeared to her had really happened. She also added a
very perplexing detail, that of having seen blood on Sollecito’s hands; but she says she had
the impression it was blood from the fish (most likely cooked for dinner). Her presence
“crouched in the kitchen” when she heard the victim’s scream and the presence of blood
on Sollecito’s hand (linked to the aforementioned fish) are facts disclosed in a perplexing
sequence, unless we interpret them as an attempt at clarification and as an admission of
her presence in the house, which she reaffirmed when she specified that she saw Patrick

(Lumumba, indisputably falsely accused) near the front door. She concluded her letter by
saying that she “didn’t remember with certainty” whether she was at her house that night.

It is indeed true that these reflections are of dubious substantial meaning, but it is also true that they cannot be dismissed – as they were – based on the presupposition of psychological pressure to which the author was subjected and of some mental manipulation that was exerted, first because the letter was written in complete solitude
after the so‐called excesses of the interrogation and second because that same document
was used by the Second Instance Court itself as the probative basis for the crime of
calunnia, on the assumption of the full possession of her mental faculties, such that Knox
was found guilty on the basis of this very letter (as well as on the basis of what she told
her mother, once again in the full possession of her mental faculties, free from pressing
interference, in the course of a conversation with her).


On this point there is, therefore, an obvious contradiction in the evaluation of the same
evidence, which calls into question the structural coherence of the decision: on this basis,
the judge of remand will have to formulate a new judgment with more coherent
argumentation, the issue once again being a significant passage of the justifying argument pertaining to the presence or lack thereof of the young woman at her residence at the time of the murder.
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Old 12th April 2021, 11:30 AM   #422
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Originally Posted by TomG View Post
Here is a short video that I found useful in understanding Italy's obligations to the ECHR committee of ministers.

https://www.youtube.com/watch?v=4UybuIA5rSo&t=155s

Hoots
Originally Posted by Numbers View Post
TomG, Thanks for posting that link.

That YouTube video (now available in 30 languages) was prepared by the Council of Europe - Committee of Ministers - Department for the Execution of Judgments of the ECHR.

The video and much further information can be accessed at their website:

https://www.coe.int/en/web/execution

By following links on that website, one finds that the most urgent CoM supervised current case against Italy is not Knox v. Italy but rather Cordella v. Italy, a case about dangerous air pollution negatively affecting the health of hundreds or even thousands of Italians, which the CoM has placed on "enhanced supervision" - meaning, urgently discussed at each of the recent quarterly meetings on execution of judgments. Knox v. Italy and the vast majority of cases are under "standard supervision".

By a link on that site, one can find a list of links to the Action Plans submitted by Italy; 74 are listed. No Action Plan for Knox v. Italy is yet listed there.

https://search.coe.int/cm#title=Acti...%7D%5D%7D#s=51
Viewing the Committee of Minister's short (about 3.5 min) video about how they supervise the execution of judgments of the ECHR would be of value to anyone wishing to understand the current status of the ECHR case Knox v. Italy. The judgment in that case became final 24 June 2019.

One site for that video, which originally was available only in English and French versions, now includes links to the video in each of 30 other languages of countries in the Council of Europe:

https://www.coe.int/en/web/execution/supervision-video

Very briefly, the execution process is carried out under international law: the treaty of the Council of Europe, called for brevity the European Convention on Human Rights. The law of each State, including Italy, that has signed that treaty states that it is obligated to follow the final judgments of the ECHR and that its laws and actions will provide human rights that meet (at a minimum) those defined in the articles of the Convention and the ECHR case-law.

When a State is found to have violated the Convention or ECHR case-law in a final judgment of the ECHR, it is obligated to redress that violation under the supervision of the Committee of Ministers (CoM), an organization that is part of the Council of Europe (CoE).

The CoM consists of the foreign ministers of each of the member States; much of the work is of course delegated to the deputies appointed by the States to support those ministers and to CoE staff. Thus, the CoM has a Department for the Execution of Judgments of the ECHR to supervise the many final judgments pending execution at any one time. There are, as of 12 April 2021, 5354 pending final judgments of the ECHR awaiting completion of execution under the supervision of the CoM. Of those pending cases, 1255 are leading cases.*

The final judgment of the ECHR case Knox v. Italy is thus one of those 1255 leading final judgment ECHR cases under the supervision of the CoM.

Under international law, an applicant to the ECHR whose Convention rights the ECHR finds in a final judgment to have been violated by a State is termed a victim.

It is the obligation, under international law, for that State to reverse the effects of the violation on the victim, insofar as possible, and to pay any Just Satisfaction awarded by the ECHR to the victim. These are called Individual Measures, and may include, for example, in the case of an unfair trial, reopening legal proceedings or reversing a conviction.

It is the obligation, under international law, for that State to make modifications of its laws and/or practices to ensure that there are no future violations of the same type as those declared in the ECHR judgment. These are called General Measures.

The State provides the CoM with an Action Plan describing the steps it will take to execute the Individual Measures and the General Measures. When it completes those steps, it provides the CoM with an Action Report. The CoM informs the State as to whether or not it considers a proposed Action Plan or Action Report adequate, and may offer suggestions or other assistance to the State. The pending case is only closed upon a vote by the CoM that the State's Action Report accurately indicates that the State has completed the necessary Measures.

The victim is not obligated under international law to take any particular steps by an ECHR final judgment, but may communicate any concerns or problems that arise during the execution to the Department of Execution of Judgments of the ECHR.

For the final judgment ECHR case Knox v. Italy, Italy has provided a preliminary communication and paid the Just Satisfaction, indicating an acknowledgement that it accepts the judgment, but Italy has not yet provided an Action Plan.

While many posters or readers here may be concerned about the Individual Measures, to the CoM, the General Measures will likely also be of importance.

For example, in Knox v. Italy, there was a violation of Article 3 of the Convention, in that the Italian police, prosecutors, and courts repeatedly ignored her complaints of police mistreatment. This violation is serious and must, I believe, be addressed by a General Measure.

Another violation was of Article 6.1 with 6.3e, failure to provide a fair interpreter; Italian law appears to be deficient in this regard, and I believe the CoM will seek some General Measure to address the issue.

Finally, Italy was found in violation of Article 6.1 with 6.3c, failure to provide legal counsel (during interrogation). The Italian police and courts interpreted existing Italian laws that make evidence obtained during an interrogation inadmissible so as to make that evidence admissible. Again, I believe that the CoM will seek for Italy to make changes to its laws and practices to avoid such a violation in the future.

* Source: https://hudoc.exec.coe.int/eng#{%22EXECDocumentTypeCollection%22:[%22CEC%22],%22EXECLanguage%22:[%22ENG%22],%22EXECIsClosed%22:[%22False%22]}
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Old 12th April 2021, 12:18 PM   #423
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Originally Posted by Stacyhs View Post
Chieffi refers to Amanda's statement that she was in the kitchen and heard Meredith's scream several times. He criticizes Hellman's not taking it into consideration seriously enough.




Chieffi goes into great detail as to why Hellmann was wrong in not giving greater weight to the "spontaneous letter" regarding the calunnia:
What is missing from the Chieffi CSC panel MR in your quote is the recognition of Italian law, CPP Article 192, paragraph 2 (the existence of a fact cannot be inferred from circumstantial evidence unless such evidence is serious, precise and consistent), CPP Article 188 (methods or techniques which may influence the freedom of self-determination or alter the capacity to recall and evaluate facts shall not be used, not even with the consent of the person concerned), CPP Article 63, CPP Article 191, and CPP Article 533 (conviction requires proof of guilt beyond a reasonable doubt).

While the CSC can rule on the legality of how evidence has been evaluated, what the Chieffi CSC panel is doing here is suggesting an evaluation of evidence to the referral (Nencini) court. According to the Marasca CSC panel, the referral court need not blindly follow such suggestions, which in the quote seems to maintain ambiguity of interpretation, as explained in great detail in Sections 3 and 3.1 (p. 23 - 25 of the translation) of the Marasca CSC panel MR. For example:

Quote:
[i]t is an indisputable application of jurisprudence that, in the presence of such grounds for annulment, pertaining to the deficiency in reasoning, the referral judge is responsible for the examination of the entire body of evidence, that he is expected to review in complete freedom to form judgments, without any type of constraints, being only required to produce motivations devoid of deficiencies of obvious lack of logic or patent contradictoriness that had caused the annulment of the first appeal verdict.
So in Section 9.4.1, the Marasca CSC panel MR attempts to show how even if the Chieffi CSC panel MR suggestions were taken as showing hypothetically that Knox was in the cottage flat at the time of the murder, she was definitively not in the murder room because there is no credible evidence of her presence there whatsoever.

I still don't follow any linkage of the Chieffi CSC panel MR suggestions to the Hellmann court conviction of Knox for calunnia against Lumumba, which was made final by the Chieffi CSC panel. The Hellmann court evaluation of the merits for the calunnia conviction were not changed by the Chieffi CSC panel; what Chieffi did was to remand with suggestions for the Nencini court to add the aggravating circumstance to the calunnia, and also to use the calunnia evidence against Knox (and thus Sollecito) for the murder/rape charges, although the Gemelli CSC panel had indicated that the calunnia evidence could not be used against Knox - although the Memoriales could be. Note that the end of the quote from Chieffi includes a false inference about Knox's talk with her mother that apparently is a survival from the Massei trial, not originating in the Hellmann trial.

But the ECHR judgment Knox v. Italy held that the violations of Knox's rights in the interrogation and subsequent prosecutor's interview had so prejudiced the calunnia case, as that evidence was used in the trial, that the trial and conviction of Knox for calunnia against Lumumba were unfair under international law.

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Old 12th April 2021, 04:25 PM   #424
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Originally Posted by Stacyhs View Post
Indeed. Nowhere in GIP Matteini's report or in the hearing transcript does she claim that Amanda repeated her accusation of Lumumba. In fact, Amanda said nothing at the hearing before the judge; only Raffaele spoke as recorded in the transcript.

http://themurderofmeredithkercher.co...aring_(English)
http://themurderofmeredithkercher.co...eport_(English)

Additionally, the ECHR's strong condemnation of Amanda's failure to have a lawyer present, of her interpreter's illegal and leading actions and that they rendered the trial unfair plus the fact that the spontaneous letter includes several statements that clearly express Amanda's doubt over her memory being either accurate or reliable about Lumumba should make Marasca's provably false Judicial Fact easily overcome...even in Italy.

From the Spontaneous Letter:

1) "In regards to this "confession" (in quotes) that I made last night, I want to make clear that I'm very doubtful of the veritity [sic] of my statements because they were made under the pressures of stress, shock and extreme exhaustion. Not only was I told I would be arrested and put in jail for 30 years, but I was also hit in the head when I didn't remember a fact correctly. I understand that the police are under a lot of stress, so I understand the treatment I received.
However, it was under this pressure and after many hours of confusion that my mind came up with these answers. In my mind I saw Patrik in flashes of blurred images."

2) " I am convinced that they unsure if they are real things that happened or are just dreams my mind has made to try to answer the questions in my head and the questions I am being asked. But the truth is, I'm unsure about the truth

3) "And I stand by my statements that I made last night about events that could have taken place in my home with Patrik, but I want to make very clear that these events seem more unreal to me than what I said before, that I stayed at Raffaele's house"

4) "I know I didn't kill Meredith. That's all I know for sure. In these flashbacks that I'm having I see Patrik as the murderer, but the way the truth feels in my mind, there is no way for me to have known, because I don't remember FOR SURE if I was at my house that night."

5) "Why did I think of Patrik?" (Gee could it be because she kept being told it was him? NAAAAAH)

6) "Is there any other evidence condemming [sic] Patrik or any other person?"

7) "Who is the REAL murder [sic]? → This is particularly important because I don't feel I can be used as condemming [sic] testimone [sic] in this instance."


Regarding #6 and #7: why would a guilty person even ask those questions?
Originally Posted by Numbers View Post
Whether a false "judicial fact" can be "easily overcome...even in Italy" may depend on the honesty of the judges hearing the case for revision and whether or not the Chief Prosecutor of the judicial district support revision.

If the Chief Prosecutor of the judicial district supports revision, I suggest the likelihood of a successful revision is vastly increased.

Recall, as pointed out by the ECHR in its judgment, that the Italian courts repeatedly ignored, with no investigation at all, each of Knox's complaints of mistreatment by the police - although any report of a crime in Italy must be investigated and, if confirmed to have occurred, prosecuted.

Recall that the Italian government argued that Knox's application to the ECHR was untimely because it was lodged before there was a final Italian court decision on the charge of aggravated calunnia against Lumumba. The ECHR found this argument without merit, since Knox had been finally convicted of "simple" calunnia, and the application was timely lodged after that final Italian court judgment.

I don't think one should assume that Italian courts function predictably. The very high number of repetitive ECHR cases against Italy that have come before the CoM shows significant dysfunction in the Italian administrative and judicial systems.
Here's another related concern about submitting a request for a revision trial which may be definitively rejected as inadmissible, even if for arbitrary or unfair reasons, first at the court of appeals, to which it must be initially submitted, and then rejected on appeal to the CSC.

The same concern holds for a request for revision that is accepted, because following acceptance there is a mini-trial (CPP Article 636) narrowly focused on the issues brought up in the request for revision (limited to the issues listed in CPP Article 630 and Italian Constitutional Court Decision 113 of 2011 - that is, a final judgment of the ECHR requiring a reopening of proceedings). The public prosecutor of the relevant legal district and any civil party are invited to the mini-trial and may either support or oppose a judgment granting revision (CPP Articles 636 and 601).

The potential concern is that, according to CPP Article 641*, the court order declaring the inadmissibility of the request for revision, or the judgment of the mini-trial rejecting granting of revision, does not override the right to submit a new request for revision based on arguments different from those in the rejected request.

So there's a potential concern: Knox submits a request for revision. Her argument specified in the request for the revision - which may be the only one available to her under Italian law - is that her trial and conviction for calunnia were found unfair by a final judgment of the ECHR.

Now, suppose that the worst arbitrary Italian judicial behavior happens, and her request is definitively rejected as inadmissible or it is accepted for a mini-trial but the final definitive judgment denies revision. According to CPP Article 641, can Knox again legally request revision based on the argument that the calunnia trial and conviction was found unfair by a final judgment of the ECHR?

I suggest that the Italian judicial uncertainties of Knox proceeding to request revision without at least the assurance of an Italian government Action Plan accepted by the CoM that explicitly recognizes that she is entitled to revision and acquittal or dismissal of the calunnia charge as redress for the violations of her rights may not be the best way for her to proceed.


* Art. 641.

Effetti dell'inammissibilita' o del rigetto

1. L'ordinanza che dichiara inammissibile la richiesta o la sentenza che la rigetta non pregiudica il diritto di presentare una nuova richiesta fondata su elementi diversi.

Sources:

https://www.studiocataldi.it/codicep.../revisione.asp

Gialuz, Luparia, and Scarpa (eds) The Italian Code of Criminal Procedure: Critical essays and English translation; Wolters Kluwer 2014
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Old 12th April 2021, 07:23 PM   #425
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Originally Posted by Numbers View Post
What is missing from the Chieffi CSC panel MR in your quote is the recognition of Italian law, CPP Article 192, paragraph 2 (the existence of a fact cannot be inferred from circumstantial evidence unless such evidence is serious, precise and consistent), CPP Article 188 (methods or techniques which may influence the freedom of self-determination or alter the capacity to recall and evaluate facts shall not be used, not even with the consent of the person concerned), CPP Article 63, CPP Article 191, and CPP Article 533 (conviction requires proof of guilt beyond a reasonable doubt).

While the CSC can rule on the legality of how evidence has been evaluated, what the Chieffi CSC panel is doing here is suggesting an evaluation of evidence to the referral (Nencini) court. According to the Marasca CSC panel, the referral court need not blindly follow such suggestions, which in the quote seems to maintain ambiguity of interpretation, as explained in great detail in Sections 3 and 3.1 (p. 23 - 25 of the translation) of the Marasca CSC panel MR. For example:



So in Section 9.4.1, the Marasca CSC panel MR attempts to show how even if the Chieffi CSC panel MR suggestions were taken as showing hypothetically that Knox was in the cottage flat at the time of the murder, she was definitively not in the murder room because there is no credible evidence of her presence there whatsoever.

I still don't follow any linkage of the Chieffi CSC panel MR suggestions to the Hellmann court conviction of Knox for calunnia against Lumumba, which was made final by the Chieffi CSC panel. The Hellmann court evaluation of the merits for the calunnia conviction were not changed by the Chieffi CSC panel; what Chieffi did was to remand with suggestions for the Nencini court to add the aggravating circumstance to the calunnia, and also to use the calunnia evidence against Knox (and thus Sollecito) for the murder/rape charges, although the Gemelli CSC panel had indicated that the calunnia evidence could not be used against Knox - although the Memoriales could be. Note that the end of the quote from Chieffi includes a false inference about Knox's talk with her mother that apparently is a survival from the Massei trial, not originating in the Hellmann trial.

But the ECHR judgment Knox v. Italy held that the violations of Knox's rights in the interrogation and subsequent prosecutor's interview had so prejudiced the calunnia case, as that evidence was used in the trial, that the trial and conviction of Knox for calunnia against Lumumba were unfair under international law.
i'm not sure we're talking about the same thing here. I'm not saying that Chieffi changed the Hellmann court evaluation of the merits for the calunnia conviction. I also understand he suggested adding the aggravating circumstances, etc. and the ECHR's conclusions.

My point was that Marasca included the bit about Amanda being in the cottage at the time of the murder because that is what Chieffi had included in his confirmation of the calunnia conviction as my quote of Chieffi shows. Whether Chieffi was right or wrong to do so, or even whether his inferences was illegal, etc. is another matter. The fact is, he did so and Marasca puts her there, too, because (imo) he was dealing with a Judicial Fact even though he immediately and illogically then states it doesn't really matter because it's overridden by the fact that nothing places her in the murder room and that is principally why he acquits her of the murder.

I still find it baffling why anyone, including Marasca, can conclude that Knox "washed her hands of Kercher's bloodin the sink" and infer the source of the DNA is Knox's epithelial cells. Did she also wash her hands in the bidet which also had a mix of Kercher's blood and Knox's DNA?
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Old 12th April 2021, 08:51 PM   #426
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Originally Posted by Stacyhs View Post
i'm not sure we're talking about the same thing here. I'm not saying that Chieffi changed the Hellmann court evaluation of the merits for the calunnia conviction. I also understand he suggested adding the aggravating circumstances, etc. and the ECHR's conclusions.

My point was that Marasca included the bit about Amanda being in the cottage at the time of the murder because that is what Chieffi had included in his confirmation of the calunnia conviction as my quote of Chieffi shows. Whether Chieffi was right or wrong to do so, or even whether his inferences was illegal, etc. is another matter. The fact is, he did so and Marasca puts her there, too, because (imo) he was dealing with a Judicial Fact even though he immediately and illogically then states it doesn't really matter because it's overridden by the fact that nothing places her in the murder room and that is principally why he acquits her of the murder.

I still find it baffling why anyone, including Marasca, can conclude that Knox "washed her hands of Kercher's bloodin the sink" and infer the source of the DNA is Knox's epithelial cells. Did she also wash her hands in the bidet which also had a mix of Kercher's blood and Knox's DNA?
I think we are approaching each other in our understandings of what the other means.

But I think I still must disagree to some degree with some of your interpretations of Marasca's MR statements. I believe you seem to be missing the clear meaning of Sections 9 through 9.4.3, which is understandable because of the lack of clarity in the text, including its failure to clearly state in each section that a hypothesis was being examined. I suggest that the MRs of the Italian judges could benefit from writing that emphases clarity rather than linguistic or literary erudition.

The Marasca CSC panel MR in these sections attempts to examine whether certain (generally false) "judicial facts" of the Nencini court MR, which (generally) were derived from the Chieffi CSC panel MR or other written documents in the court file, including the Massei trial, could, if hypothetically true, lead to a proof of guilt beyond a reasonable doubt.

Here's the text at the beginning of Sections 9 through 9.4.3, the start of Section 9. Much of the rest of Section 9 is a justification that the legal concept "no verdict of guilt unless guilt is proven beyond a reasonable doubt" (Italian law, in CPP Article 533, adopted in 2006 to satisfy the ECHR) is compatible with "traditional" Italian legal philosophy:

Quote:
The ascertained errores in iudicando [errors in judgment] and the logical inconsistencies pointed out invalidate the appealed verdict from the funditus [foundations], hence it deserves to be annulled.

The aforementioned reasons for annulling can be summarised in the inability to present an evidentiary framework that can really be considered suitable to support a pronouncement of guilt beyond a reasonable doubt, as required by Article 533 of the Italian Code of Criminal Procedure in the text renewed by Article 5 of the law n. 46/2006.
Here's Section 9.1, which states, in simpler language, that the evidence is too contradictory to allow a finding of guilt beyond a reasonable doubt and, in essence, that the judge should not violate the constitution provision of the presumption of innocence when the evidence is contradictory:

Quote:
The intrinsically contradictory ensemble of the body of evidence, whose objective uncertainty is already emphasised by the previously highlighted wavering progress of the proceedings, does not therefore allow [us] to be satisfied to the standard of [beyond a] reasonable doubt, whose establishment is an achievement of legal culture that must, always and in any case, be upheld since it is the expression of fundamental constitutional values, centered around the key role of the human being in the judicial system, whose protection in the context of a trial is also exercised by the principle of presumption of innocence until the definitive decision [verdict], as per Article 27, section 2 of the Constitution.
And in Section 9.2, the Marasca CSC panel states its intent to examine in a general summary alleged evidence of guilt and show that the contradictory nature of that alleged evidence does not allow a verdict of guilt based on proof beyond a reasonable doubt:

Quote:
The aspects of the objectively contradictory nature [of evidence] can be, as shown below, illustrated for each defendant, in a synoptic {general summarization} presentation of the elements favourable to the hypothesis of guilt and of the elements against it, as they are shown, of course, by the text of the challenged ruling and of the previous ones.
Sections 9.3 through 9.4.3 are thus the specifics of the general summary introduced in Section 9.2.

In Section 9.3, the Marasca MR makes the point that the DNA evidence clearly shows that Knox was present in the cottage flat, but this is to be expected since it was her residence. Thus, it cannot be considered proof of guilt. The MR then goes on to point out that even if Knox had been present in the flat as a passive observer during the murder/rape, she would not be guilty of the murder/rape of Kercher.

In Section 9.4, the Marasca MR clearly states that there was an absolute lack of DNA or other biological traces of Knox and Sollecito in the murder room, while the DNA and biological traces of Guede were plentiful. Therefore, even if Knox and Sollecito were present in the cottage flat at the time of the murder/rape, they were not material participants in the crime. The last two paragraphs of Section 9.4 state:

Quote:
No trace belonging to them {Knox and Sollecito} was found in particular on the sweater that the victim was wearing at the time she was attacked nor on her shirt underneath, which would have been the case if they had participated in the murder (instead, traces of Guede were found on a sleeve of the aforementioned sweater: ff, 179-180).

This aforementioned negative circumstance accords with the fact, already highlighted, of the absolute impracticability of the posthumous clean-up hypothesis, removing some biological traces while leaving others.
In Section 9.4.1, the Marasca MR forgets that the Gemelli CSC panel MR had excluded use of Knox's statements against her, while misusing the first Memoriale. Otherwise, the section is a bag describing the false, contradictory or ambiguous alleged evidence relating primarily to Knox used in the Nencini and Massei trials. There is no finding that this alleged evidence can lead to proof of guilt beyond a reasonable doubt.

Section 9.4.2 is a bag describing false, contradictory or ambiguous alleged evidence from the Nencini and Masse trials relating to Sollecito. Agains, there is no finding that this alleged evidence can lead to proof of guilt beyond a reasonable doubt.

Section 9.4.3 states:

Quote:
It can easily be observed that the conclusion that there was a lack of an evidentiary framework consistent and sufficient to support the prosecution’s hypothesis regarding the more serious case of murder certainly reverberates on {is also true for} the residual, secondary accusations, listed here, d) theft of mobile phones and e) simulation of a crime.
One shoud pay attention to the summary provided in Section 10, which begins:

Quote:
The intrinsic contradictory nature of the evidence, emerging from the text of the appealed verdict, in essence undermines the connective tissue of the same, leading to its annulment.

In fact, in the presence of a scenario marked by many contradictions, the referral judge should not have come to a verdict of guilt, but - as previously observed – should have reached a verdict of not guilty, given Article 530, section 2, Italian Code of Criminal Procedure.

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Old 12th April 2021, 10:31 PM   #427
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One thing that we can absolutely agree on is that the language is often quite confusing and contradictory! I wonder if that is sometimes intentional.
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Old 12th April 2021, 11:32 PM   #428
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Originally Posted by Stacyhs View Post

I still find it baffling why anyone, including Marasca, can conclude that Knox "washed her hands of Kercher's blood in the sink" and infer the source of the DNA is Knox's epithelial cells. Did she also wash her hands in the bidet which also had a mix of Kercher's blood and Knox's DNA?
DNA expert Peter Gill writes in his Analysis of the case that the theory (originally from Massei) has no basis in scientific fact.

"These statements relate to the activity of transfer—not backed up by any scientific evidence beyond the sub-source inference. There is an expectation that mixtures of DNA will be observed as natural background where people share premises. This expectation of mixtures also extends to visitors of premises. Therefore the limitations of interpretation of the DNA evidence are still firmly rooted at sub-source level."

I think the theory was dramatized out of proportion by M/B to suggest that the acquittals were a close run thing.

"Sub-source" meaning that the DNA is there but you can't infer how it got there.

Peter Gill was one of the team that pioneered DNA profiling in the early 1980's so his opinion is trustworthy and second to none. So the theory is all nonsense anyway.

Hoots
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Old 13th April 2021, 07:30 AM   #429
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b

Originally Posted by Stacyhs View Post
One thing that we can absolutely agree on is that the language is often quite confuwsing and contradictory! I wonder if that is sometimes intentional.
In the sections where the Marasca CSC panel MR discusses the hypotheticals - actually false, contradictory, or ambiguous alleged evidence from the Massei, Chieffi, or Nencini court documents - it generally does not show all the reasons that alleged evidence is not credible. For example, the DNA mixture in the sink - which may have included blood - the Marasca MR does not indicate that the DNA sample was gathered by swabbing the entire surface of the bowl as though it were being washed. This of course resulted in mixing whatever DNA and any blood that was on the sink. Since the sink was used by both Knox and Kercher, who were the residents of the flat, the alleged DNA evidence from the sink is thus not relevant with respect to those two individuals. Had a third person's DNA been detected from the sink, and that person was not a known guest in the flat, that would be possible credible evidence of an intruder or otherwise suspicious person.

The Marasca CSC panel was negligent not to state such obvious considerations in the MR. But that is only one example of how the Italian MRs often are not clear and logical. The Marasca CSC panel MR is far better in clarity and logic than the Nencini, Chieffi, or Massei MRs, but it was unclear especially in the "bag" sections in 9.4.

Also see TomG's post #428, which explains the mixture of DNAs expected when two or more persons share a residence (or other location such as an office), as well as the possible leaving of DNA by legitimate guests.

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Old 13th April 2021, 09:40 AM   #430
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sub-source DNA

If a DNA profile is sub-source, it means that the fluid or tissue associated with the DNA is not known. In some contexts it might also refer to a discussion of the quality of the DNA profile (in terms of its strength as evidence) separate (apart) from its any consideration of its source. For example a full DNA profile is stronger evidence than a partial profile, all else held equal.

Mixed profiles found along with a single source are prone to being misinterpreted via the association fallacy, a topic on which Peter Gill has also written.
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Old 13th April 2021, 11:07 AM   #431
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Originally Posted by Chris_Halkides View Post
If a DNA profile is sub-source, it means that the fluid or tissue associated with the DNA is not known. In some contexts it might also refer to a discussion of the quality of the DNA profile (in terms of its strength as evidence) separate (apart) from its any consideration of its source. For example a full DNA profile is stronger evidence than a partial profile, all else held equal.

Mixed profiles found along with a single source are prone to being misinterpreted via the association fallacy, a topic on which Peter Gill has also written.
Cheers and thanks for clarifying. The bottom line is that the "washed blood" theory is still bollocks.

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Old 14th April 2021, 08:38 AM   #432
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One of the frequent themes of the PGP has been that the Italian police, prosecutor, and convicting courts did not commit any wrongs in the Knox - Sollecito case and could not, because of their professional standing, violate the rights of Knox and Sollecito, contrary to the claims of Knox and of Sollecito.

Of course, the PGP theme is contradicted by the findings of Italian courts as well as the final judgment of the ECHR in the case Knox v. Italy. The Gemelli CSC panel in 2008 found that Knox's rights had been violated (by the police and prosecutor) in the way her interrogation and "spontaneous declaration" statements were obtained in violation of Italian law CPP Article 63. The Boninsegna court, in its acquittal of Knox on the charges of aggravated continuing calunnia against the police and prosecutor Mignini - charges brought against her because of her statements in the Massei court and in each of her appeals - confirmed that Knox's defense rights had been violated and found that the police and prosecution conduct during the interrogation was so irregular with respect to Italian law that there was no credible evidence that Knox had committed calunnia against the police and prosecutor - that is, there was no evidence that her allegations were false.

In reality, there is considerable evidence that in Italy (as in some other countries), the police themselves sometimes violate the law, including by beating and torturing suspects or others, and that the courts or the very structure of the judicial process sometimes gives the police immunity from accountability for such misconduct.

I have previously posted about the ECHR cases against Italy stemming from the serious misconduct, including beatings and torture of peaceful demonstrators, by the Italian police during the Genoa G8 summit in 2001. These cases include Cestaro v. Italy, Bartesaghi Gallo and others v. Italy, Blair and others v. Italy, and Azzolina and others v. Italy. One notable allegation by the victims of the police misconduct was that "... [T]hey had been subjected to torture and complained that the investigation by the domestic courts had been ineffective, in particular because the statute of limitations had been applied to virtually all the acts committed and because a number of those convicted had been granted a remission of their sentence."*

The pending ECHR case Cioffi v. Italy contains similar allegations of beatings and torture by the Italian police, this time of an innocent bystander allegedly illegally arrested at a hospital during the 2001 Global Forum on Reinventing Government in Naples. Cioffi, who was a law student at the relevant time, alleges in his pending case that his detention was contrary to the Convention, and that the police "responsible for his ill-treatment were prosecuted for offences which were barred as time-limited during the criminal proceedings, and that Italian criminal law as a whole does not guarantee adequate punishment for acts of that type."**

*Source:

https://www.echr.coe.int/Documents/CP_Italy_ENG.pdf
page 6

** Sources:

https://www.echr.coe.int/Documents/CP_Italy_ENG.pdf
page 16

http://hudoc.echr.coe.int/eng?i=001-160714
Cioffi v. Italy 17710/15
Communication (in English)
Application lodged 16 June 2015

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Old 14th April 2021, 10:26 AM   #433
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Originally Posted by Stacyhs View Post
Amanda said she is still seeking to have the calunnia judgment rectified but that it is 'very expensive'. Since the ECHR has found in her favor, I would think that all she has to do is have her lawyers file a request for a revision trial. That would involve the cost of the lawyers filing the court fees of the request and their time. Since her statements from Nov. 5/6 cannot be used and in her memorial she does actually say she's unsure of anything she said and she makes no accusation, I doubt there would actually be a trial. What am I missing that could be so expensive?
Originally Posted by Numbers View Post
I wondered about that as well when I heard her statement in her YouTube talk.

It may be that she anticipates that, without an Action Plan from Italy mentioning revision, the Italian courts would unfairly block her request for revision, and she would wind up with more legal expenses to fight that.

But it could also be that she is using the expenses as a cover for waiting Italy to present its Action Plan before she seeks revision, or is waiting for Italy to have a prosecutor file for revision, as allowed under Italian law.
One other caution regarding a premature request for revision: If the request is rejected as inadmissible in accordance with CPP Article 634, the Court of Appeal rejecting the request may order the private person (not a prosecutor) to a fine of not less than EUR 258 nor more than EUR 2065. If the request is ruled inadmissible, the requestor may appeal to the CSC.

If the CSC accepts the appeal, the request for revision is referred to a different Court of Appeal. Otherwise, the request for revision is denied as inadmissible, and in accordance with CPP Article 641, no new request for revision in the case may use the same arguments as those used for the inadmissible request.

An an example of a request for revision being rejected as inadmissible, with appeal to the CSC also being rejected, was the request by Guede on the basis that the final judgment of conviction in his case was contradictory to the final judgment of acquittal in the case of Knox and Sollecito. The Italian courts did not accept that the contrasting verdicts were contradictory. According to CPP Article 634, Guede could not legally again request revision on the basis of the two judgments being contradictory, although he or his heirs even after he is deceased could request revision on the basis of some other argument allowed under CPP Article 630. Because the time limits for submission of an application to the ECHR have passed for Guede's conviction for the murder/rape of Kercher, and Guede never applied to the ECHR within that time limit (as far as publicly known), Constitutional Court Decision 113 of 2011 could not apply in his case.

Text of CPP Article 634:

Quote:
1. Quando la richiesta è proposta fuori delle ipotesi previste dagli articoli 629 e 630 o senza l'osservanza delle disposizioni previste dagli articoli 631, 632, 633, 641 ovvero risulta manifestamente infondata, la corte di appello anche di ufficio dichiara con ordinanza l'inammissibilità e può condannare il privato che ha proposto la richiesta al pagamento a favore della cassa delle ammende di una somma da duecentocinquantotto euro a duemilasessantacinque euro.

2. L'ordinanza è notificata al condannato e a colui che ha proposto la richiesta, i quali possono ricorrere per cassazione. In caso di accoglimento del ricorso, la Corte di cassazione rinvia il giudizio di revisione ad altra corte di appello individuata secondo i criteri di cui all'articolo 11.
Sources:

https://www.brocardi.it/codice-di-pr...iv/art634.html

Gialuz, Luparia, and Scarpa (ed.) The Italian Code of Criminal Procedure: Critical essays and English translation; Wolters Kluwer (c) 2014

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Old 14th April 2021, 04:10 PM   #434
Stacyhs
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Italian laws can be very irrational.
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Old 14th April 2021, 05:33 PM   #435
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Originally Posted by Stacyhs View Post
Italian laws can be very irrational.
Even more irrational is how the police, prosecutors, and judges will sometimes not follow the laws that are rational.
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Old 14th April 2021, 06:47 PM   #436
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Originally Posted by Numbers View Post
Even more irrational is how the police, prosecutors, and judges will sometimes not follow the laws that are rational.
True, like Massei concluding that the luminol revealed footprints were Amanda's in Meredith's blood even though he had earlier admitted they had tested negative for blood with TMB.



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Old 15th April 2021, 12:31 PM   #437
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Originally Posted by Stacyhs
Italian laws can be very irrational.
Originally Posted by Numbers View Post
Even more irrational is how the police, prosecutors, and judges will sometimes not follow the laws that are rational.
The nub of this case surrounds whether or not a judge at trial thought that Knox's presence in the murder room had been proven. The way that the Massei court claimed that that had been proven was for Judge Massei to replace himself as the expert, even over Stefanoni who was the prosecution's scientific expert.

In 2010, convicting Judge Massei wrote that Knox's exfoliated skin cells in the bathroom, mixed in with blood, was proof that Knox had been in the murder room.

In 2015, the acquitting Supreme Court panel wrote that even if that had been true, that Knox's exfoliated skin cells had been found in the bathroom mixed with blood, that that does not make up for the lack of any evidence of Knox in the murder room itself - all that that did was show that Knox had been in another part of the house at a later time.

There it sits. The basis of an acquittal, which the 2015 Supreme Court panel said should have been the conclusion of the lower court(s).

All that is before considering that the original Scientific Police person, Stefanoni, is recorded by the Massei Court of Stefanoni casting doubt as to whether or not the "mixed biological traces" were mixed between Knox and the victim.
Originally Posted by Massei in 2010 page 240
(Stefanoni) added that in actuality there is water in blood, but in a different
concentration; in blood there is less water than in a trace, which contains more water
and is less rich in blood. Though, from the point of view of other substances (sweat,
etc.), no tests were done.
Therefore, it was definitely a mixture of biological
substances, but it was not in any case possible to determine whether it was blood
plus blood, or blood and saliva, or blood and exfoliation cells. One could only say
that there was definitely blood present, and that the trace was found in the very
same places.
So Massei admited that Stefanoni was not even sure that it was a combination of Knox's exfoliated cells found in the victim's blood. Yet, Massei then proceeded as if Stefanoni was correct. He then concluded on page 409:
Originally Posted by Massei in 2010 page 409
The traces found in the bathroom constitute, in their overall evaluation as mentioned
above, a further element of proof against Amanda Knox, showing how she herself
had been in the room where Meredith was killed and, stained with blood, she went
to the bathroom to wash herself, leaving, as a result of this action, mixed biological traces constituted of her own material and of Meredith's (likely the blood which coloured the trace a faded red).
So.... rather than deal with the total lack of evidence in the murder room, or even deal with Stefanoni's own cautions with regard to using skin cell exfoliation as a reliable source of DNA, Massei just bulled ahead to find guilt nonetheless.

For me, this part is an example of what the 2015 court said was wrong with this case as it proceeded: judges who were substituting themselves for the experts who gave testimony. Maresca and Bruno wrote that Italian judges too often deem themselves to be the "expert of the experts", as if bowing to what the experts say is somehow forfeiting their own role as judges to be the deciders.
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Old 15th April 2021, 02:39 PM   #438
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Originally Posted by Bill Williams View Post
The nub of this case surrounds whether or not a judge at trial thought that Knox's presence in the murder room had been proven. The way that the Massei court claimed that that had been proven was for Judge Massei to replace himself as the expert, even over Stefanoni who was the prosecution's scientific expert.

In 2010, convicting Judge Massei wrote that Knox's exfoliated skin cells in the bathroom, mixed in with blood, was proof that Knox had been in the murder room.

In 2015, the acquitting Supreme Court panel wrote that even if that had been true, that Knox's exfoliated skin cells had been found in the bathroom mixed with blood, that that does not make up for the lack of any evidence of Knox in the murder room itself - all that that did was show that Knox had been in another part of the house at a later time.

There it sits. The basis of an acquittal, which the 2015 Supreme Court panel said should have been the conclusion of the lower court(s).

All that is before considering that the original Scientific Police person, Stefanoni, is recorded by the Massei Court of Stefanoni casting doubt as to whether or not the "mixed biological traces" were mixed between Knox and the victim.
So Massei admited that Stefanoni was not even sure that it was a combination of Knox's exfoliated cells found in the victim's blood. Yet, Massei then proceeded as if Stefanoni was correct. He then concluded on page 409:
So.... rather than deal with the total lack of evidence in the murder room, or even deal with Stefanoni's own cautions with regard to using skin cell exfoliation as a reliable source of DNA, Massei just bulled ahead to find guilt nonetheless.

For me, this part is an example of what the 2015 court said was wrong with this case as it proceeded: judges who were substituting themselves for the experts who gave testimony. Maresca and Bruno wrote that Italian judges too often deem themselves to be the "expert of the experts", as if bowing to what the experts say is somehow forfeiting their own role as judges to be the deciders.
Indeed, Massei, Chieffi, and Nencini wrote MRs as though they were the "experts of experts", overriding true expert opinions; but they also, when presented with a range of possible explanations or inferences for alleged evidence, would choose the one indicating guilt, even if that inference was improbable - perhaps even absurd.

And, this type of choice led to the assumption of "judicial facts" that were patently absurd violations of what is physically possible. An example: the claim that Knox and Sollecito had selectively cleaned up their DNA from the murder room.

Marasca (not Maresca) in the final judgment of acquittal MR, in Section 9.4, calls an imagined "judicial fact" fabricated to show guilt an "inquisitorial assumption":

Quote:
What is certain is that no traces of blood were found on the knife, lack of which cannot be linked to meticulous cleaning. As noted by the defence, the knife showed traces of starch, a sign of ordinary domestic use and of cleaning that was anything but meticulous. Not only this, but starch is famous as a substance with a high absorbance rate, thus, it is highly likely that, in the event of a stabbing, it would have retained blood traces.

In this respect the inquisitorial assumption that the young woman was used to carrying this heavy kitchen knife with her for personal self-defence, for this purpose using - it is said - her large bag, is highly implausible. It is inconceivable that the woman, having been told by her boyfriend to be careful when going out at night, did not use one of the switchblades which Sollecito certainly owned, as it seems he was keen on this type of weapon and had a collection of a number of such items.
The misconduct of judges Massei, Chieffi, and Nencini can be understood as their clinging to formerly legal "inquisitional" judicial methods, including fabricating "inquisitional assumptions" as a partner to the prosecution, in trials which under current Italian law (Article 111 of the Italian Constitution) are required to be conducted as an adversarial contest with an impartial judge in neutral position. And its bizarre that the Marasca MR, in countering the "inquisitional assumption" on Amanda Knox carrying a large knife in her purse in Section 9.4, seems to assume in inquisitional fashion that she would be carrying instead a smaller knife - with no evidence given in the trial that she carried any knife.

Quote:
Art. 111

Jurisdiction is implemented through due process regulated by law.
All court trials are conducted with adversary proceedings and the parties are entitled to equal conditions before an impartial judge in third party
position.

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Old 15th April 2021, 05:45 PM   #439
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Originally Posted by Numbers View Post
And, this type of choice led to the assumption of "judicial facts" that were patently absurd violations of what is physically possible. An example: the claim that Knox and Sollecito had selectively cleaned up their DNA from the murder room.
Judge Massei in his 2010 MR doesn't mention a cleanup in the murderroom. He imagines a clean-up must have happened in the short space in the hall between the murderroom and the bathroom, or else he would have no explanation for why neither RS nor AK's forensics were found in that short space. He just shrugged his shoulders and said it must have happened.

Originally Posted by Numbers View Post
Marasca (not Maresca) in the final judgment of acquittal MR, in Section 9.4, calls an imagined "judicial fact" fabricated to show guilt an "inquisitorial assumption":
I stand corrected.

Section 9.4 lays out in convoluted fashion why the case against AK and/or RS cannot be made, leading to Section 10 when it concludes that the previous judge should have acquitted based on the evidence in front of him.

There used to be on-line guilters who would do contortions to say that the Marasca-Bruno report all-but convicted, that they thought of AK/RS as almost guilty but not quite. They ignore the plain text renderings of "even if", meaning that even if the prosecution case had been true that the prosecution never climbed the barrier, which it called definitive, that no evidence of either of them was found in the murder room.
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Old 15th April 2021, 08:40 PM   #440
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Originally Posted by Bill Williams View Post
Judge Massei in his 2010 MR doesn't mention a cleanup in the murderroom. He imagines a clean-up must have happened in the short space in the hall between the murderroom and the bathroom, or else he would have no explanation for why neither RS nor AK's forensics were found in that short space. He just shrugged his shoulders and said it must have happened.


I stand corrected.

Section 9.4 lays out in convoluted fashion why the case against AK and/or RS cannot be made, leading to Section 10 when it concludes that the previous judge should have acquitted based on the evidence in front of him.

There used to be on-line guilters who would do contortions to say that the Marasca-Bruno report all-but convicted, that they thought of AK/RS as almost guilty but not quite. They ignore the plain text renderings of "even if", meaning that even if the prosecution case had been true that the prosecution never climbed the barrier, which it called definitive, that no evidence of either of them was found in the murder room.
Thanks for your correction.

I was basing my comment on the statements directed against the Nencini court MR, in Section 8.1 (pp. 42 - 43) of the Marasca CSC panel MR:

Quote:
An element of evidence of unchallengeable relevance - for the reasons explained hereinafter - is represented by the total absence of biological traces attributable with certainty to the two defendants in the murder room or on the body of the victim, whereas, instead, abundant traces surely attributable to Guede have been found.

This was an insurmountable monolithic barrier on the path taken by the fact-finding judge to arrive at the conviction of the present defendants, already acquitted previously for the murder by the Court of Appeals of Perugia.

To overcome the relevance of such a negative element - undeniably favourable to the defendants - it has been claimed in vain that, after staging the break-in, the authors of the crime performed a “selective” cleaning of the crime scene, in order to remove only those damning traces attributable to them, while leaving behind, instead, those attributable to others.

This hypothesis is patently illogical. To fully understand its degree of inconsistency it is not really necessary to appoint court experts, even if this has been requested by the defences. That such a selective cleaning, moreover capable of escaping detection by luminol, whose use by the investigators (also to find traces of non-haematic origin) is nowadays part of everyday knowledge, is, for sure, impossible, according to the basic laws of ordinary experience.

After all, the assertion itself of a presumed carefulness in the cleaning is factually proven wrong, since in the “small bathroom” traces of blood have been found on the mat, on the bidet, on the tap, on a Q-tips box and on the light switch. And yet, had the defendants been guilty, they surely would not have lacked the time for an accurate cleaning, in the sense that there was no reason for the perpetrators to hurry up for fear of the possible arrival at home of other people. In fact, Knox was perfectly aware that Romanelli and Mezzetti were outside Perugia and would not have come back home that night, hence there would have been all the time necessary for a careful cleaning of the house.
The Marasca MR goes on to state regarding certain alleged traces of blood detected elsewhere in the cottage flat:

Quote:
With reference to the alleged bloody traces in the other rooms, mainly in the corridor, there is even an obvious misrepresentation of evidence. Indeed the S.A.L. of the Scientific Police (acronym of “Stato Avanzamento Lavori” [State of Work Progress], stating the progression of the scientific investigations and their results) had excluded, thanks to the use of a specific chemical reagent [TMB], that the traces highlighted by luminol in the concerned rooms were of haematic nature. These papers, even if duly filed into the trial documents, have been completely neglected.

Not only that, but it is also patently illogical, in this context, the reasoning of the fact finding judge, who (on page 186) reckons being able to overcome the defensive objection that the luminescent bluish reaction generated by luminol can be produced also by substances different from blood (for instance, leftovers of cleaning detergents, fruit juices and many others), by arguing that the reasoning, while theoretically correct, has however to be “contextualised”, meaning that if the fluorescence occurs at a place where a murder occurred, the reaction cannot be but connected with haematic traces.

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