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

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Old 16th March 2019, 07:22 PM   #3321
Numbers
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Originally Posted by Stacyhs View Post
There's a PGP on another site claiming there was a bleach cleanup in the cottage and that Lumumba fired Knox for coming on to customers! Another one is claiming that Knox only took one course at the U for Foreigners and that it was just a "cover" for her real agenda: drinking and sex. Sometimes I think people should have to pass an IQ test above 100 before being allowed to post.
Originally Posted by Bill Williams View Post
Years ago, I put a list together of 13 things which guilters claim which even the 2010 Massei report debunks. The claims in your post Stacyhs, made by others, were standard fare 9 years ago **before** the text of the Massei report was released and translated.

Whoever this guilter-nutter is, they're about a decade behind the times.
Originally Posted by Stacyhs View Post
There are two of them. One is definitely stuck in 2008-2009 and the other, frankly, has a personal vendetta against Knox.
The guilters' "facts" are generally misrepresentations or fabrications, and their arguments are absurdities.

But that must follow from the obvious truth that the original case generated by Mignini and the police - working under Mignini's direction on the case in accordance with Italian law - against Knox and Sollecito was a fabrication or hoax. That is clear from the actual evidence, the alleged evidence, and the procedures used by the police and the provisionally-convicting courts. The ECHR has ruled that Knox's defense rights under the European Convention on Human Rights were violated by the Italian authorities - the police and the courts - during the Nov. 5/6 interrogation and the subsequent trial and conviction for calunnia against Lumumba. The violations found include denial of a lawyer during interrogation, misconduct by the interpreter (an agent of the police), and repeated refusal by the Italian authorities to fulfill their obligation under international law to effectively and independently investigate Knox's credible claim of mistreatment in violation of Article 3 by the police during the interrogation.

Whether or not all the authorities involved in the case realized it was a hoax or not, or whether or not all the few guilters who remain active realize they are continuing to support a hoax is, of course, unknown.

Speculations about the self-awareness of those who deny the reality of the innocence of Knox and Sollecito in the Kercher murder/rape case may parallel, by example, the speculations about the self-awareness of the amateur opera singer Florence Foster-Jenkins, who may or may not have known the true quality of her singing; see, among other sources:

https://en.wikipedia.org/wiki/Florence_Foster_Jenkins

Last edited by Numbers; 16th March 2019 at 07:42 PM.
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Old 17th March 2019, 07:48 AM   #3322
Bill Williams
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Originally Posted by Numbers View Post
Whether or not all the authorities involved in the case realized it was a hoax or not, or whether or not all the few guilters who remain active realize they are continuing to support a hoax is, of course, unknown.

Speculations about the self-awareness of those who deny the reality of the innocence of Knox and Sollecito in the Kercher murder/rape case may parallel, by example, the speculations about the self-awareness of the amateur opera singer Florence Foster-Jenkins........
What the long history of this thread (plus continuations) on JREF/ISF show is that guilter-nutters substitute repetition for evidence.
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In a thread titled "Who Killed Meredith Kercher?", the answer is obvious. Rudy Guede and no one else.
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Old 17th March 2019, 12:19 PM   #3323
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Originally Posted by Stacyhs View Post
There's a PGP on another site claiming there was a bleach cleanup in the cottage and that Lumumba fired Knox for coming on to customers! Another one is claiming that Knox only took one course at the U for Foreigners and that it was just a "cover" for her real agenda: drinking and sex. Sometimes I think people should have to pass an IQ test above 100 before being allowed to post.
I agree it would be a good thing if people were given IQ tests before being allowed to join internet forums and participants should have the basic intelligence to understand things. It is annoying when posters come up with ludicrous idea and can’t grasp simple things as Vixen does :-

• Lies on an industrial scale in their posts and attack Amanda for telling numerous lies without realising how hypocritical and strange this behaviour is.

http://www.internationalskeptics.com...2#post11938562
http://www.internationalskeptics.com...2#post11942852
http://www.internationalskeptics.com...2#post11598412
http://www.internationalskeptics.com...1#post11427461
http://www.internationalskeptics.com...3#post11951893
http://www.internationalskeptics.com...3#post11982023
http://www.internationalskeptics.com...6#post12107306
http://www.internationalskeptics.com...3#post12200863
http://www.internationalskeptics.com...3#post12297573
http://www.internationalskeptics.com...5#post12297575

• Calls Amanda a psychopath because Amanda supposedly told numerous lies without realising that you are branding yourself a psychopath if you tell numerous lies yourself.

• Talk about the methods used to detect liars without realising the irony of this when lying on an industrial scale yourself.

• Attacks Amanda for telling numerous lies and as the post below shows has to resort to lying to sustain this claim without understanding this destroys the argument Amanda has told numerous lies.

http://www.internationalskeptics.com...0#post12390810

• Claiming there is a mountain of evidence and a slam dunk case against Amanda and Raffaele whilst having to resort to lying to argue their case without realising this destroys the notion the prosecution had a slam dunk case.

• Claiming the prosecution had a mountain of evidence and a slam dunk case when they had to resort to the tactics below.

http://www.amandaknoxcase.com/raffaeles-kitchen-knife/
http://www.amandaknoxcase.com/contam...bwork-coverup/
http://www.amandaknoxcase.com/meredi...ry-corruption/
http://www.amandaknoxcase.com/evidence-destroyed/
http://www.amandaknoxcase.com/blood-...irs-apartment/
https://knoxsollecito.wordpress.com/...ele-sollecito/
http://www.injusticeinperugia.org/myths.html
http://www.internationalskeptics.com...4#post11071314

• Claiming that Amanda and Raffaele felt it necessary to stage a rape of Meredith despite Rudy having raped Meredith which was proved by Rudy’s DNA in Meredith’s vagina.

• Arguing that Amanda would not need to lie if she was innocent whilst having to lie to argue the case for Amanda’s guilt without realising how hypocritical this is.

• Arguing that Amanda and Raffaele committed murder with Guede and Amanda covered up for Guede despite numerous holes in this scenario as detailed below in the post below

http://www.internationalskeptics.com...8#post11970178

• Claiming the Italian justice system was bending over backward for Amanda and Raffaele despite the brutal treatment they received under this system as detailed in the post below

http://www.internationalskeptics.com...3#post12036493

• Defend’s Curalto’s testimony without realising that Curalto’s testimony provides Amanda and Raffaele with an alibi as he has them away from the cottage and is damaging to the PGP case.

• Can’t understand it is perfectly normal for someone to leave their DNA somewhere they live and that finding someone’s DNA in their home is not incriminating.
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Old 18th March 2019, 05:53 PM   #3324
Bill Williams
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Preston's Afterward

I had read Douglas Preston's/Mario Spezi's 2008 "The Monster of Florence" a long time ago. Yet I now have a copy in it with Preston's/Spezi's 2013 Afterward, which is now attached to the book. That Afterward is Preston's/Spezi's account of how Mignini had rolled the Kercher murder and his investigations into Knox/Sollecito into the overall Monster of Florence history.

The Afterward starts with news of the Kercher murder, as well as a call from his friend Niccolo Capponi, betting Preston that Mignini would somehow tie the Perugian murder into the Monster of Florence case. Preston declined the bet.

Preston then lists the influence of psychic and conservative Catholic Gabriella Carlizzi had had on Mignini, she had seemingly anticipated the murder, saying that Hallowe'en was happening and that evil would reign.

I could go on summarizing this Afterward - my mouth dropped at each tidbit that went a long way to explaining how the early investigation had gone so wrong so quickly - because of Mignini's bizarre theories.

Yet it was when Preston discussed the on-line hate campaign, and the way the online hate sites stirred the pot that he covered one last item - the way the tabloid press had escalated the bizarre theories into a tabloid hate-industry.

Enter Preston's mention of Barbie Nadeau. When the police had seized Knox's prison diary, and then had leaked it to the press, a fairly straightforward entry where Knox had been struggling (in writing) with what Raffaele's possible role in this could have been - and what Raffaele would have had to have done to frame her (Knox)...... she ended her speculation with, "I just highly doubt all of that," meaning that in working it out, she couldn't see how it could have been possible for Raffaele to have framed her.

The Italian translation of this which had appeared in the press, rendered, "I just highly doubt all of that," as, "I don't understand why Raffaele would do that," which made it appear Knox had entertained doubts about him - which her English words made clear she did not.

Barbie Nadeau? In reporting back to the USA, she simply took the Italian version of that diary entry, translated it back into English and passed it on to The Daily Beast without checking with the English original. The Daily Beast had some of the most guilt-friendly pieces in the USA media, and never ran a retraction.

I remember years ago this snippet from the prison diary had come up - the Italian version translated back into English - which a guilter-nutter had used to prove that Knox had been trying to throw Sollecito under the bus. This nutter had claimed that Nadeau had been a journalist of highest ethics and beyond reproach.

Then someone posted the original English version. Guilter-nutters pointed to that posting (of actual evidence) as part of the PR conspiracy to manage Knox's reputation. The guilter-nutters did everything except bow to the inevitable; that the original was prior and disproved what they'd been advancing.

Anyway, it was amazing to read Preston's 16 pages on the case. I'd recommend it, especially given all he'd gone through with Mignini himself.
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Last edited by Bill Williams; 18th March 2019 at 06:32 PM.
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Old 18th March 2019, 06:51 PM   #3325
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Bill, that is very interesting! Thanks for sharing.

I'm dealing with someone elsewhere who has recently stated that Lumumba may have changed his story of being abused during his interrogation to being treated well because the Knox PR had stopped paying him.
In response to my saying that I suspected Guede refused to testify because he didn't want to be cross examined by the defense, this same person said that would be the Knox PR/legal people. How do you respond to such stupid statements other than to say they're stupid?
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Old 18th March 2019, 07:38 PM   #3326
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Gentlemen, start your engine

John Henry Wigmore said that cross examination was, "beyond any doubt the greatest legal engine ever invented for the discovery of truth," No wonder Guede would not want to be cross-examined.
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Old 19th March 2019, 12:22 AM   #3327
Stacyhs
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Originally Posted by Chris_Halkides View Post
John Henry Wigmore said that cross examination was, "beyond any doubt the greatest legal engine ever invented for the discovery of truth," No wonder Guede would not want to be cross-examined.
I think the Massei trial would have gone far differently had Guede been cross examined by the defense.
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Old 19th March 2019, 02:59 PM   #3328
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Originally Posted by Stacyhs View Post
I think the Massei trial would have gone far differently had Guede been cross examined by the defense.
Could Guede have been required to testify? Does Italy have anything like the Fifth Amendment?
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Old 19th March 2019, 03:36 PM   #3329
Bill Williams
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Originally Posted by Bob001 View Post
Could Guede have been required to testify? Does Italy have anything like the Fifth Amendment?
Guede opted for a fast track trial, in essence both sides stipulated to a common corpus of evidence in exchange for an abbreviated trial. No defendant in Italy is required to testify, indeed defendants aren't even sworn when they do - the implication meaning that the system expects them to lie, as they are free from the laws of perjury.

Note here:

https://www.hg.org/legal-articles/de...ceedings-51030

In this, please note it lists these as rights for someone accused of a crime in Italy:
- right to have exculpatory evidence turned over to the defence
- right to gather exculpatory evidence
- right to a lawyer present during a body search
- mandatory right to having a lawyer during interrogation
- right to be informed of charges/evidence
- foreigners have the right to translation/interpretation of documents
- not required to attend trial, except when being I.D.ed by a witness
- right to make voluntary statements at any time during trial
- right to silence at any stage of procedure, including trial
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Old 19th March 2019, 04:31 PM   #3330
Numbers
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Originally Posted by Stacyhs View Post
I think the Massei trial would have gone far differently had Guede been cross examined by the defense.
Originally Posted by Bob001 View Post
Could Guede have been required to testify? Does Italy have anything like the Fifth Amendment?
Originally Posted by Bill Williams View Post
Guede opted for a fast track trial, in essence both sides stipulated to a common corpus of evidence in exchange for an abbreviated trial. No defendant in Italy is required to testify, indeed defendants aren't even sworn when they do - the implication meaning that the system expects them to lie, as they are free from the laws of perjury.

Note here:

https://www.hg.org/legal-articles/de...ceedings-51030

In this, please note it lists these as rights for someone accused of a crime in Italy:
- right to have exculpatory evidence turned over to the defence
- right to gather exculpatory evidence
- right to a lawyer present during a body search
- mandatory right to having a lawyer during interrogation
- right to be informed of charges/evidence
- foreigners have the right to translation/interpretation of documents
- not required to attend trial, except when being I.D.ed by a witness
- right to make voluntary statements at any time during trial
- right to silence at any stage of procedure, including trial
As pointed out by Bill, Guede legally could not be compelled to undergo cross-examination.

On the other hand, as stated in the Italian Constitution, Article 111:

"The guilt of the defendant cannot be established on the basis of statements by persons who, out of their own free choice, have always voluntarily avoided undergoing cross-examination by the defendant or the defence counsel."

The prosecution was allowed by the Nencini appeal court to introduce evidence against Knox and Sollecito from Guede's fast-track trial using CPP Article 238-bis as the alleged legal justification. Knox and Sollecito did not have legal representation and there was no right for them to cross-examine or challenge the evidence presented at Guede's fast-track trial. The Marasca CSC panel disallowed the use of this evidence because it was a violation of Article 111 of the Italian Constitution and CPP Article 536.1-bis. Also, under CPP Article 197-bis.4, Guede legally could not be obliged to testify against Knox and Sollecito or to any facts related to the offense of which he and they were jointly accused, because even though Guede was finally convicted of the murder/rape of Kercher, he denied that he had committed that crime during this trial and afterwards.

From pages 29-30 of the translation of the Marasca CSC panel MR linked from
http://www.amandaknoxcase.com/:

"4.3.2. Regarding the second question, and as regards its usability – according to the method of acquisition under Article 238 bis Italian Code of Criminal Procedure - statements made by Guede contra alios [against others] as part of its proceedings in the absence of people blamed and their lawyers. (This is by reference to Guede’s not always consistent and stable allegations, made during the preliminary investigation and reported in judgment. In these he had somehow involved Knox in the murder, but never explicitly Sollecito, while at the same time continuing to profess his own innocence, despite the presence at the scene of the murder and on the victim's body of numerous biological traces attributable to him). Here the result can only be negative. Indeed, such a mode of acquisition would result in an elusive sidestepping of the guarantees laid down by Article 526 section 1-bis Italian Code of Criminal Procedure, whose tenor is that "the guilt of the defendant cannot be established on the basis of statements by persons who by choice have always voluntarily avoided examination by the accused or his counsel". This would obviously, at the same time, be in violation of Article 111, section 4 Constitution, which gives the same conclusion to harmonise the trial system, according to Article 6[.3] letter d), of the European Commission [sic; correctly; Convention] of Human Rights (Section F. n. 35729 of 01/08/2013, Agrama, Rv 256576).

In this regard, it is useful to recall the principle of "non substitutability", taken by the United Sections of the Supreme Court from the widest category of "legality of the evidence", reflecting that, when the code establishes a prohibition or expresses non-usability, the use of other procedural instruments, typical or atypical, intended to surreptitiously circumvent such a barrier, is forbidden. (Section U, n. 36747 of 28/05/2003, Torcasio, Rv. 225467; cf, and Section U, n. 28997 of 19/04/2012, Pasqua, Rv. 252893).

And even in this {Nencini court} trial process, Guede - called to testify as a witness as a result of the accusatory statements of Mario Alessi (a man convicted of a horrendous murder of a child) - after having denied the accusation, confirmed the contents of a letter he sent to his lawyer, and then unexpectedly turned to a news broadcast, in which he accused today's applicants, and then refused cross-examination by their lawyers. Thus after recognising the authenticity of his letter refuting Alessi’s claim that Raffaele Sollecito and Amanda Knox had nothing to do with the murder, Guede refused to be cross-examined by the defendants' lawyers, assuming that his presence in the trial was limited to the content of the statements of Alessi concerning himself. Hence, the unusability stated – in the part related to the letter that however concerned today’s appellants – cannot be used in a different procedural context, given that it was made without the prescribed guarantees.

On the other hand, confronting the definitive attitude of closure the (appeal) court did not force the Ivorian to testify, as a result of the irrevocability of the judgment obtained against him, pursuant on Article 197 Italian Code of Criminal Procedure.

And in fact, bearing in mind the successive Article 197 bis, section 4, of the same legal code, he {Guede} could not be compelled to give evidence about facts for which he had already been condemned, but always denied his responsibility, and could not give evidence involving his responsibility in relation to the offence in the present trial, since it was made outside such prescribed guarantees."
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Old 19th March 2019, 06:35 PM   #3331
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Originally Posted by Chris_Halkides View Post
John Henry Wigmore said that cross examination was, "beyond any doubt the greatest legal engine ever invented for the discovery of truth," No wonder Guede would not want to be cross-examined.
Haha! Nor did Raff.
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Old 19th March 2019, 08:08 PM   #3332
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Originally Posted by Numbers View Post
As pointed out by Bill, Guede legally could not be compelled to undergo cross-examination.

On the other hand, as stated in the Italian Constitution, Article 111:

"The guilt of the defendant cannot be established on the basis of statements by persons who, out of their own free choice, have always voluntarily avoided undergoing cross-examination by the defendant or the defence counsel."

What I meant was could Guede -- after his own fast-track conviction -- have been required to testify as a witness at the Knox/Sollecito trials, and as a witness, not a defendant, could their lawyers have cross-examined him? Presumably with his case resolved, nothing he said could have made his situation worse.

Last edited by Bob001; 19th March 2019 at 08:10 PM.
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Old 19th March 2019, 09:41 PM   #3333
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Originally Posted by Vixen View Post
Haha! Nor did Raff.
The one big glaring elephant in the room is that there was zero evidence placing Raff in Meredith's bedroom where she was murdered while the same could not be said of Guede.
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Old 19th March 2019, 10:27 PM   #3334
Numbers
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Originally Posted by Bob001 View Post
What I meant was could Guede -- after his own fast-track conviction -- have been required to testify as a witness at the Knox/Sollecito trials, and as a witness, not a defendant, could their lawyers have cross-examined him? Presumably with his case resolved, nothing he said could have made his situation worse.
Repeating part of my earlier quote from the Marasca CSC panel motivation report:

"... bearing in mind the successive {CPP} Article 197 bis, section 4, of the same legal code, he {Guede} could not be compelled to give evidence about facts for which he had already been condemned, but always denied his responsibility, and could not give evidence involving his responsibility in relation to the offence in the present trial, since it was made outside such prescribed guarantees."

So, the answer to your question is: No, Guede could not be required to testify as a witness at the trials of Knox and Sollecito. And, therefore, he could not be required to undergo cross-examination.

Because Guede was accused of taking part in the same crime, the murder/rape of Kercher, as were Knox and Sollecito, he could not be a merely a "witness" under Italian law. According to Italian law, any statement he made would be as someone who was also a co-accused for the same crime. If he had admitted to the crime, rather than maintaining that he had not committed it, he could have been obligated to testify. But he did not admit any participation in the crime and therefore could not be obligated to testify at all.

The Italian law that covers this is Code of Criminal Procedure (Codice di Procedura Penale, CPP) Article 197-bis, paragraph 4.

Furthermore, as Bill pointed out, defendants (accused persons) are not at all obligated to testify under Italian law, just as they are not obligated to testify under US law. (Under US law, a defendant who chooses to testify and allegedly testifies falsely can be prosecuted for perjury, but under Italian law, an accused who chooses to testify and allegedly testifies falsely cannot be prosecuted for perjury, but can be prosecuted for other alleged offenses, such as calunnia or autocalunnia.)

Last edited by Numbers; 19th March 2019 at 10:31 PM.
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Old 20th March 2019, 08:20 AM   #3335
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Originally Posted by Vixen View Post
Haha! Nor did Raff.
Non sequitur. Guede invoked his right to not testify, obviously to avoid being cross examined. Raffaele did no such thing. No one ever called him to testify.
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Old 20th March 2019, 09:43 AM   #3336
Numbers
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Originally Posted by TruthCalls View Post
Non sequitur. Guede invoked his right to not testify, obviously to avoid being cross examined. Raffaele did no such thing. No one ever called him to testify.
Just to be clear:

Under Italian law, the accused is not obligated to testify. The prosecutor cannot legally seek the testimony of the accused. An accused may volunteer to testify or to make a statement.

Guede volunteered to present testimony in cooperation with the prosecution, supposedly about a letter he had written to his attorney, which he turned into comments - presented as an opinion - against Knox and Sollecito, before the Nencini appeal court. Then he refused to be cross-examined.

Again, just to be clear, under US law and more relevantly under ECHR case-law and Italian law, a defendant or accused person is not required to testify in his own trial.

Furthermore, under Italian law, an accused person cannot be required to testify in a trial of persons accused of the same crime for which he was convicted previously, as long as he has not admitted responsibility or guilt for that crime.

Since Guede did not admit to murdering/raping Kercher, he could not legally be required to testify at the Knox - Sollecito trial. However, he choose to testify before the Nencini appeal court. However, he then choose not to be cross-examined.

According to the Italian Constitution and law, if a person refuses cross-examination, none of their testimony may be used as evidence to convict anyone in that trial or a related trial.

Thus, Guede's testimony could not be used against Knox or Sollecito according to Italian law.

Last edited by Numbers; 20th March 2019 at 09:46 AM.
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Old 20th March 2019, 01:06 PM   #3337
Bob001
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Originally Posted by Numbers View Post
.....
Since Guede did not admit to murdering/raping Kercher, he could not legally be required to testify at the Knox - Sollecito trial. However, he choose to testify before the Nencini appeal court. However, he then choose not to be cross-examined.

According to the Italian Constitution and law, if a person refuses cross-examination, none of their testimony may be used as evidence to convict anyone in that trial or a related trial.

Thus, Guede's testimony could not be used against Knox or Sollecito according to Italian law.
Under those circumstances, why would he be allowed to testify at all? If his testimony can't be used against the defendants, and his testimony can't be challenged or impugned, and presumably the prosecution wouldn't allow him to testify if it would benefit the defendants, why did he get through the front door?
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Old 20th March 2019, 01:46 PM   #3338
Numbers
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Originally Posted by Bob001 View Post
Under those circumstances, why would he be allowed to testify at all? If his testimony can't be used against the defendants, and his testimony can't be challenged or impugned, and presumably the prosecution wouldn't allow him to testify if it would benefit the defendants, why did he get through the front door?
The prosecution wanted him to present his testimony. The Nencini appeal court allowed that testimony.

Possibly the prosecution was hoping that the Nencini court would not follow Italian law and would use his testimony to support a conviction.

And indeed, the Nencini court did not follow Italian law with respect to his testimony. It was one of a number of violations of Italian procedural law by the Nencini court. Those violations were among the reasons why the Marasca CSC panel overturned the Nencini court provisional convictions of Knox and Sollecito.

It should be understood by those following this case, and apparently other cases in Italy, that the Italian courts do not necessarily rigorously follow Italian law. The judges in some cases tend to fall back on arbitrary reasoning and legal traditions established before the Italian legal system, including revisions of Article 111 the Italian Constitution*, was subjected to reforms by the Italian parliament in 1988 and subsequently. Italy's uneven transition from an inquisitorial and relatively unfair legal system in which the judge was expected to accept the prosecution case, as presented in an investigative file, as the truth to an adversarial and relatively fair legal system in which the judge is expected to hear both sides from a neutral position was discussed at length some time ago in this forum**.

Among the other reasons the the Nencini court provisional convictions were overturned were that there was no credible evidence that Knox or Sollecito had been present in the murder room or had physical contact with Kercher.

*Text of Article 111; some of the post-1988 reforms are highlighted. These reforms were instituted in part to conform to ECHR case-law and the articles of the European Convention on Human Rights:

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.

The law provides for the reasonable duration of trials.

In criminal law trials, the law provides that the alleged offender shall be promptly informed confidentially of the nature and reasons for the charges that are brought and shall have adequate time and conditions to prepare a defence.

The defendant shall have the right to cross-examine or to have cross-examined before a judge the persons making accusations and to summon and examine persons for the defence in the same conditions as the prosecution, as well as the right to produce all other evidence in favour of the defence.

The defendant is entitled to the assistance of an interpreter in the case that he or she does not speak or understand the language in which the court proceedings are conducted.

In criminal law proceedings, the formation of evidence is based on the principle of adversary hearings.

The guilt of the defendant cannot be established on the basis of statements by persons who, out of their own free choice, have always voluntarily avoided undergoing cross-examination by the defendant or the defence counsel.

The law regulates the cases in which the formation of evidence does not occur in an adversary proceeding with the consent of the defendant or owing to reasons of ascertained objective impossibility or proven illicit conduct.

All judicial decisions shall include a statement of reasons.

Appeals to the Court of Cassation in cases of violations of the law are always allowed against sentences and against measures affecting personal freedom pronounced by ordinary and special courts. This rule can only be
waived in cases of sentences by military tribunals in time of war.

Appeals to the Court of Cassation against decisions of the Council of State
and the Court of Accounts are permitted only for reasons of jurisdiction.

Source of the translation: Senato della Repubblica (Senate of the Italian Republic).

**There have been a number of articles published by Italian legal academics on this topic, some of which were previously discussed on this forum.

Examples include:

Luparia, Luca; Model code or broken dream? The Italian criminal procedure in a comparative perspective.
Gialuz, Mitja; The Italian Code of Criminal Procedure: A reading guide.

Both in: The Italian Code of Criminal Procedure: Critical essays and English translation. Wolters Kluwer Italia (c) 2014

https://journals.sagepub.com/doi/abs...urnalCode=epja

Montana, R. (2012). Adversarialism in Italy: Using the concept of legal culture to understand
resistance to legal modifications and its consequences. European Journal of Crime, Criminal Law
and Criminal Justice, 20(1), pp. 99-120

https://openscholarship.wustl.edu/la...s/vol4/iss3/5/

Illuminati, Giulio (2005) The frustrated turn to adversarial procedure in Italy. 4 Wash U Glob Stud L Rev 567-581

Last edited by Numbers; 20th March 2019 at 02:18 PM.
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Old 20th March 2019, 08:32 PM   #3339
Numbers
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Originally Posted by Numbers View Post
The prosecution wanted him to present his testimony. The Nencini appeal court allowed that testimony.

Possibly the prosecution was hoping that the Nencini court would not follow Italian law and would use his testimony to support a conviction.

And indeed, the Nencini court did not follow Italian law with respect to his testimony. It was one of a number of violations of Italian procedural law by the Nencini court. Those violations were among the reasons why the Marasca CSC panel overturned the Nencini court provisional convictions of Knox and Sollecito.

It should be understood by those following this case, and apparently other cases in Italy, that the Italian courts do not necessarily rigorously follow Italian law. The judges in some cases tend to fall back on arbitrary reasoning and legal traditions established before the Italian legal system, including revisions of Article 111 the Italian Constitution*, was subjected to reforms by the Italian parliament in 1988 and subsequently. Italy's uneven transition from an inquisitorial and relatively unfair legal system in which the judge was expected to accept the prosecution case, as presented in an investigative file, as the truth to an adversarial and relatively fair legal system in which the judge is expected to hear both sides from a neutral position was discussed at length some time ago in this forum**.

Among the other reasons the the Nencini court provisional convictions were overturned were that there was no credible evidence that Knox or Sollecito had been present in the murder room or had physical contact with Kercher.

*Text of Article 111; some of the post-1988 reforms are highlighted. These reforms were instituted in part to conform to ECHR case-law and the articles of the European Convention on Human Rights:

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.

The law provides for the reasonable duration of trials.

In criminal law trials, the law provides that the alleged offender shall be promptly informed confidentially of the nature and reasons for the charges that are brought and shall have adequate time and conditions to prepare a defence.

The defendant shall have the right to cross-examine or to have cross-examined before a judge the persons making accusations and to summon and examine persons for the defence in the same conditions as the prosecution, as well as the right to produce all other evidence in favour of the defence.

The defendant is entitled to the assistance of an interpreter in the case that he or she does not speak or understand the language in which the court proceedings are conducted.

In criminal law proceedings, the formation of evidence is based on the principle of adversary hearings.

The guilt of the defendant cannot be established on the basis of statements by persons who, out of their own free choice, have always voluntarily avoided undergoing cross-examination by the defendant or the defence counsel.

The law regulates the cases in which the formation of evidence does not occur in an adversary proceeding with the consent of the defendant or owing to reasons of ascertained objective impossibility or proven illicit conduct.

All judicial decisions shall include a statement of reasons.

Appeals to the Court of Cassation in cases of violations of the law are always allowed against sentences and against measures affecting personal freedom pronounced by ordinary and special courts. This rule can only be
waived in cases of sentences by military tribunals in time of war.

Appeals to the Court of Cassation against decisions of the Council of State
and the Court of Accounts are permitted only for reasons of jurisdiction.

Source of the translation: Senato della Repubblica (Senate of the Italian Republic).

**There have been a number of articles published by Italian legal academics on this topic, some of which were previously discussed on this forum.

Examples include:

Luparia, Luca; Model code or broken dream? The Italian criminal procedure in a comparative perspective.
Gialuz, Mitja; The Italian Code of Criminal Procedure: A reading guide.

Both in: The Italian Code of Criminal Procedure: Critical essays and English translation. Wolters Kluwer Italia (c) 2014

https://journals.sagepub.com/doi/abs...urnalCode=epja

Montana, R. (2012). Adversarialism in Italy: Using the concept of legal culture to understand
resistance to legal modifications and its consequences. European Journal of Crime, Criminal Law
and Criminal Justice, 20(1), pp. 99-120

https://openscholarship.wustl.edu/la...s/vol4/iss3/5/

Illuminati, Giulio (2005) The frustrated turn to adversarial procedure in Italy. 4 Wash U Glob Stud L Rev 567-581
Here is an excerpt from the Illuminati paper, describing the inquisitorial proceedings as conducted in practice in the Italian judicial system prior to the reforms which began in 1988, in a criminal procedural system that had been codified in 1930, under the fascist regime:

"... the preliminary investigative phase served as the central process of criminal proceedings, as this was when evidence was actually collected. In most cases the trial phase did not add to what had been done in the investigative phase or disavow the conclusion reached during the investigation. {While the defense was allowed, after the 1970s, to challenge or contradict evidence during the trial, the trial judge had access to the investigative dossier and was allowed to base his decision on those records alone.} The trial simply functioned as a control on what had been previously decided. The trial often turned out to be merely an occasion for the 'official reading' of the record formed during the investigative stage.

It is true that witnesses could be called to trial to testify and their testimony could differ from that given to the investigating judge. But the decision still could be based solely on the investigative dossier, disregarding the evidence presented during the trial phase. ...."

What seems to occur in some trials in Italy under the current adversarial system, implemented by law in 1988 and subsequently, is that the prosecutors and judges retain a kind of judicial cultural memory of the inquisitorial system, and some judges follow the arguments of the prosecutors while neglecting or ignoring those of the defense, or some judges create their own arbitrary interpretations of the evidence.

Certain aspects of fair judicial practice considered fundamental in the US or the UK seem to be still regarded with suspicion as foreign in Italy. For example, one of the 1988-era reforms was the formal legal adoption of proof of guilt "beyond a reasonable doubt" as the only allowed basis for a judgment of conviction (CPP Article 533). The Hellmann appeal court motivation report allocates considerable space to arguments supporting this concept (which was made the law in Italy in part to conform with the European Convention on Human Rights and ECHR case-law). The Massei court verdict provisionally convicting Knox and Sollecito was, as pointed out by Hellmann, based on a subjective probabilitistic evaluation of the alleged evidence against them.

Furthermore, in Italy, prosecutors are magistrates who serve in the judicial branch with their colleagues, the judges. This differs from the system in some other countries, such as the US and the UK, where the prosecutors serve in the executive branch (US) or a special prosecution service (UK). Thus, prosecutors and judges have a close collegial working relationship in Italy which may influence the subjective views of judges toward the arguments of prosecutors.

Another difference in the Italian system is that when a crime becomes known to the police or other authorities, under Italian law, a prosecutor is placed in direct control of the police team investigating that crime. (In the US, the police team remains under the direction of a senior police official, and the case prosecutor does not exercise direct control of the police team.) The Boninsegna court motivation report affirmed the hierarchical control by the prosecutor, Mignini, of the police team that interrogated Knox on November 5/6, 2007. Thus, procedural actions by the police in a criminal investigation, even unlawful ones, may be rightfully assumed to originate with orders or instructions from the prosecutor, the hierarchical leader of the investigative team.

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Old Yesterday, 04:29 AM   #3340
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Two of the great mysteries of this case, still not solved.
1. Was Rudy a police informant?
2. How did that lamp get there?
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Old Yesterday, 09:55 AM   #3341
Bill Williams
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Originally Posted by RoseMontague View Post
Two of the great mysteries of this case, still not solved.
1. Was Rudy a police informant?
2. How did that lamp get there?
3. Why was the presumed semen stain on the pillow under the victim's hips not tested?
4. Why was Det. Marco Chiacchiera`s advice not followed on the morning of Nov 6, 2007, to release Sollecito, Knox, and Lumumba and continue to observe them?
5. Did co-prosecutor Comodi really threaten to resign if Mignini had gone into the first (Massei) trial with the Satanic rite theory, rather than the sex-game gone wrong theory?
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Old Yesterday, 10:55 AM   #3342
Bob001
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Originally Posted by Numbers View Post
.....
What seems to occur in some trials in Italy under the current adversarial system, implemented by law in 1988 and subsequently, is that the prosecutors and judges retain a kind of judicial cultural memory of the inquisitorial system, and some judges follow the arguments of the prosecutors while neglecting or ignoring those of the defense, or some judges create their own arbitrary interpretations of the evidence.
.....

If the judges can choose to accept the prosecution's claims without question or challenge, the defendant is pretty much cooked the day he is arrested. That goes a long way toward explaining what happened here. I wonder what the conviction rate is for ordinary, non-headline-making criminal trials.

If only Amanda had gotten out of the country, like her Mom advised....
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Old Yesterday, 04:38 PM   #3343
Bill Williams
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Originally Posted by Bob001 View Post
If only Amanda had gotten out of the country, like her Mom advised....
It's hard to know where this would have gone without that Nov 5/6 interrogation. With no memorales with Patrick Lumumba's name mentioned, and no SMS msg to be misinterpreted, would they even have gone against him?
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Old Yesterday, 05:05 PM   #3344
Numbers
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For the case Knox v. Italy, the ECHR has, since its original publication on 24 January 2019 of an English-language press release summary of the case, also published a legal summary. The legal summary may provide a more concise summation of the judgment.

The legal summary site is:
https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-12309%22]}

The text is as follows:

Knox v. Italy - 76577/13

Judgment 24.1.2019 [Section I]

Article 3

Effective investigation

Lack of an investigation into allegations of ill-treatment by the police during the questioning of a person in a state of shock: violation

Article 6

Article 6-3-c

Defence through legal assistance

Use in evidence of a malicious accusation, made to the police by a person in a state of shock, without access to a lawyer: violation

Article 6-3-e

Free assistance of interpreter

Interpreter having acted as a mediator and with a motherly attitude during the questioning of a person in a state of shock: violation

Facts – At the time of the events Ms Knox, a 20 year-old American student, had been in Italy for about two months. She had found a temporary job in a pub run by D.L. Following the discovery of the body of a girl living in the same flat as the applicant, who was then present on the premises with her boyfriend, they were both interviewed by the police and their telephone conversations were monitored.

On 6 November 2007 at 1.45 a.m., the applicant was interviewed by three police officers and A.D., who had been called as an interpreter. She stated, among other things, that D.L. had committed the crimes. The public prosecutor then interviewed the applicant at 5.45 a.m., with A.D. and some police officers being present. The applicant was not assisted by a lawyer during that interview. At 8.30 a.m., the applicant, her boyfriend and D.L. were formally arrested on charges of sexual assault and murder. Having provided an alibi, D.L. was later released.

Around 1 p.m. and throughout the proceedings, the applicant spoke of her state of shock and confusion during her last incriminating interview under police pressure, and she retracted her accusation against D.L. However, on 14 May 2008, she was formally charged with bringing a malicious accusation.

Following a hearing on 13 March 2009, at which the applicant again alleged that she had been ill-treated during the interview of 6 November 2007 and complained about the conduct of the interpreter A.D., her defence requested the transmission of documents to the public prosecutor’s office, but nothing happened. Further proceedings were brought against the applicant for falsely accusing the police officers and prosecutor who had questioned her on 6 November 2007.

In September 2015 the Court of Cassation acquitted the applicant on the charges of murder and sexual assault and observed that her conviction and three-year prison sentence for the malicious accusation against D.L. had already become final. The applicant was also acquitted on the charge of falsely accusing the police officers and the prosecutor.

Law

Article 3 (procedural limb): On 6 November 2007, a few hours after making incriminating statements about D.L. and throughout the proceedings, the applicant had clearly explained that she had been in an extreme state of shock and confusion and that the police had put pressure on her. The Court of Appeal, in its judgment of 3 October 2011, had concluded that the applicant had in fact been subjected to a genuine degree of torment, placing her in an unbearable psychological situation from which she had sought to extract herself by incriminating D.L.

In addition, the interpreter had been acting more as a “mediator”, even though she was not required to go beyond her interpreting duties. One of the police officers had even embraced and caressed the applicant and had clasped her hands, thus clearly behaving inappropriately, especially in a context where she had made accusations subsequently characterised as malicious which had resulted in her conviction.

The above-mentioned behaviour, which shed light on the general conditions in which the applicant had been interviewed, should have alerted the national authorities to the possibility that her dignity and capacity for self-determination had been impaired.

In spite of her repeated complaints, the treatment complained of had not led to any investigation capable of shedding light on the facts and on any responsibilities. In particular, her lawyer’s request of 13 March 2009 for the transmission of documents to the public prosecutor had remained unanswered. Moreover, the criminal proceedings against the applicant for bringing a malicious accusation against the authorities – which had in fact led to her acquittal, as there was no evidence that her account of what had happened was inaccurate – could not constitute an effective investigation into the applicant’s complaints.

Conclusion: violation (unanimously).

Article 6 §§ 1 and 3 (c)

(a) Applicability of Article 6 – The Court reiterated that a “criminal charge” existed from the moment that an individual was officially notified by the competent authority of an allegation that he had committed a criminal offence, or from the point at which his situation had been substantially affected by actions taken by the authorities as a result of a suspicion against him. The applicant could certainly be regarded as a suspect by the time she made her statement to the public prosecutor, at 5.45 a.m. on 6 November 2007. Therefore by 5.45 a.m. at the latest, there had been a criminal charge against her within the meaning of the Convention.

(b) Whether there were any compelling reasons to justify the restriction of her right of access to a lawyer – The Government had relied on the interpretation of domestic case-law to point out that the impugned statements of 6 November 2007, even though no lawyer had been present, could be used in evidence, as they incorporated in themselves a criminal offence. The Court noted, however, that this interpretation was general in scope and the Government had failed to establish that there had been exceptional circumstances in the present case to justify the restrictions on the applicant’s right. Thus there was no compelling reason capable of justifying the restriction on her access to a lawyer.

(c) Overall fairness of the proceedings – A few hours after the interview of 6 November 2007, the applicant, who was vulnerable as a foreigner and as a young woman of 20, not having been in Italy for long and not being fluent in Italian, had promptly gone back on her statements. Nevertheless, six months later, on 14 May 2008, she was charged with malicious accusation.

The impugned statements had been taken in a context of heightened psychological pressure, which had not been investigated. And those statements had constituted in themselves the offence with which she was charged and therefore the real evidence on the basis of which she had been found guilty of bringing a malicious accusation. Lastly, the record of the applicant’s interview at 5.45 a.m. did not indicate that she had been notified of her procedural rights.

Consequently, the restriction of the applicant’s access to legal assistance during her interview of 6 November 2007 at 5.45 a.m. had irretrievably impaired the overall fairness of the proceedings.

Conclusion: violation (unanimously).

Article 6 §§ 1 and 3 (e): The fact that the interpreter A.D. had played the role of a mediator, adopting a motherly attitude, while the applicant, having been charged with a criminal offence, was formulating her statement, had gone beyond the duties expected of an interpreter. However, the authorities had failed to assess the conduct of A.D., to examine whether her interpreting assistance had been consistent with the safeguards under Article 6 §§ 1 and 3 (e) of the Convention, or to consider whether that conduct had had an impact on the outcome of the criminal proceedings against the applicant. In addition, in the relevant police record there was no mention of the exchanges between the applicant and A.D. during the interview of 6 November 2007.

That initial failure had thus had repercussions for other rights, which were separate but closely related to the right at issue, and had undermined the overall fairness of the proceedings.

Conclusion: violation (unanimously).

The Court also found that there had been no violation of Article 3 in its substantive limb, as there was insufficient evidence for it to conclude that the applicant had actually sustained the inhuman or degrading treatment of which she had complained.

Article 41: EUR 10,400 in respect of non-pecuniary damage.

(See also Salduz v. Turkey [GC], 36391/02, 27 November 2008, Information Note 113; Gäfgen v. Germany [GC], 22978/05, 1 June 2010, Information Note 131; Kaçiu and Kotorri v. Albania, 33192/07 and 33194/07, 25 June 2013; Baytar v. Turkey, 45440/04, 14 October 2014, Information Note 178; Ibrahim and Others v. the United Kingdom [GC], 50541/08 et al., 13 September 2016, Information Note 199; Beuze v. Belgium [GC], 71409/10, 9 November 2018, Information Note 223; and the Factsheet on Police arrest and assistance of a lawyer)

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Old Yesterday, 10:03 PM   #3345
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Originally Posted by Bill Williams View Post
3. Why was the presumed semen stain on the pillow under the victim's hips not tested?
4. Why was Det. Marco Chiacchiera`s advice not followed on the morning of Nov 6, 2007, to release Sollecito, Knox, and Lumumba and continue to observe them?
5. Did co-prosecutor Comodi really threaten to resign if Mignini had gone into the first (Massei) trial with the Satanic rite theory, rather than the sex-game gone wrong theory?
I consider #3 about the same as saying they didn't tape the interrogation. You really have to suspend common sense to believe some of this stuff.
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Old Yesterday, 11:42 PM   #3346
Stacyhs
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Originally Posted by RoseMontague View Post
I consider #3 about the same as saying they didn't tape the interrogation. You really have to suspend common sense to believe some of this stuff.
I agree. It's a classic case of "WTF?!" As I recall, the reason was that, even if it were semen, it couldn't be dated. Did they really think Meredith was sleeping on a pillow stained with old semen? You'd think the prosecution would want it tested to see if it was Sollecito's which would have been strong evidence of his complicity. Not testing it makes ZERO sense.
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Old Today, 12:39 AM   #3347
Bill Williams
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Originally Posted by Stacyhs View Post
I agree. It's a classic case of "WTF?!" As I recall, the reason was that, even if it were semen, it couldn't be dated. Did they really think Meredith was sleeping on a pillow stained with old semen? You'd think the prosecution would want it tested to see if it was Sollecito's which would have been strong evidence of his complicity. Not testing it makes ZERO sense.
The absolutely most stupid guilter-nutter comment of all time, was when they blamed Sollecito's lawyers for causing the presumed semen stain on that pillow to avoid testing.

From Nov 2 to Nov 8 Sollecito didn't have lawyers, and the first 4 of those days Sollecito himself never dreamt he'd be pulled into this!
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Old Today, 05:57 AM   #3348
Numbers
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The Italian Ministry of Justice has prepared a translation of the ECHR judgment into Italian. Thus, we can be sure that the Italian government is aware of the ECHR judgment.

The Italian translation is available on HUDOC, the ECHR database. Here's the final summation of the judgment, the PQM (For these reasons):

PER QUESTI MOTIVI, LA CORTE, ALL’UNANIMITÀ,

Respinge l’eccezione di mancato esaurimento delle vie di ricorso interne sollevata dal Governo per quanto riguarda le doglianze relative all’articolo 6 §§ 1 e 3 c) ed e) della Convenzione;
Unisce al merito l’eccezione sollevata dal Governo per mancato esaurimento delle vie di ricorso interne nell’ambito dell’articolo 3 della Convenzione e la respinge;
Dichiara il ricorso ricevibile per quanto riguarda le doglianze relative agli articoli 3 e 6 §§ 1 e 3 c) ed e) della Convenzione e irricevibile per il resto;
Dichiara che non vi è stata violazione dell’articolo 3 della Convenzione sotto il profilo materiale;
Dichiara che vi è stata violazione dell’articolo 3 della Convenzione sotto il profilo procedurale;
Dichiara che vi è stata violazione dell’articolo 6 §§ 1 e 3 c) della Convenzione;
Dichiara che vi è stata violazione dell’articolo 6 §§ 1 e 3 e) della Convenzione;
Dichiara
che lo Stato convenuto deve versare alla ricorrente, entro tre mesi a decorrere dal giorno in cui la sentenza sarà divenuta definitiva conformemente all’articolo 44 § 2 della Convenzione, le somme seguenti, al tasso applicabile alla data del pagamento:
10.400 EUR (diecimilaquattrocento euro), più l’importo eventualmente dovuto a titolo di imposta, per il danno morale,
8.000 EUR (ottomila euro), più l’importo eventualmente dovuto a titolo di imposta dalla ricorrente, per le spese;
che, a decorrere dalla scadenza di detto termine e fino al versamento, tali importi dovranno essere maggiorati di un interesse semplice ad un tasso equivalente a quello delle operazioni di rifinanziamento marginale della Banca centrale europea applicabile durante quel periodo, aumentato di tre punti percentuali;
Rigetta la domanda di equa soddisfazione per il resto.

Fatta in francese, poi comunicata per iscritto il 24 gennaio 2019, in applicazione dell’articolo 77 §§ 2 e 3 del regolamento della Corte.
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