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

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Old 10th January 2022, 07:35 PM   #2201
Bill Williams
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Originally Posted by Numbers View Post
The ball is in Italy's court. It is obligated under international law - the CoE treaty - to provide an Action Plan to the CoM showing how it will resolve its violations of Knox's rights and detailing the measures it will take to prevent any recurrence.
We're going in circles. Of course it is 'obligated'. But until the keepers of international law send in the troops to enforce the law, issue arrests, or collect fines....

..... there's no merit to the obligation.
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Old 10th January 2022, 08:07 PM   #2202
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At this point, the ECHR is a toothless tiger. However, Italy did pay the fine to Amanda which at least shows an acknowledgement that they have an obligation to abide by its rulings. We can only hope they will follow through with the rest.
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Old 11th January 2022, 01:19 AM   #2203
Numbers
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Originally Posted by Bill Williams View Post
We're going in circles. Of course it is 'obligated'. But until the keepers of international law send in the troops to enforce the law, issue arrests, or collect fines....

..... there's no merit to the obligation.
Originally Posted by Stacyhs View Post
At this point, the ECHR is a toothless tiger. However, Italy did pay the fine to Amanda which at least shows an acknowledgement that they have an obligation to abide by its rulings. We can only hope they will follow through with the rest.
The statements above are, of course, accurate.

The ECHR has the authority to declare judgments and to order immediate measures (in cases of urgency) while the CoM has the authority to supervise the execution of those judgments and immediate measures by each respondent State.

There are, however, two enforcement methods that potentially may influence a respondent State to abide by its commitments to the Convention:

The CoE Parliamentary Assembly (PACE) can suspend the voting rights of a member State that is considered in violation of its responsibilities under the Convention. The only example of that was the suspension of Russia in the period 2014 - 2019; however, Russia responded by withholding its annual membership contributions (about 33 million euros/year).

An example of an apparently successful enforcement was the referral of Azerbaijan to the ECHR by the Committee of Ministers in 2017 with regard to the CoM's allegation that Azerbaijan had refused to abide by the ECHR's final judgment in the case Ilgar Mammadov v. Azerbaijan 15172/13. That first final judgment (2014) had explicitly called for Ilgar Mammadov to be immediately released from detention, on account of there being no grounds under the Convention for that detention; he was, according to the first ECHR judgment, arrested and detained solely for political reasons. The CoM then referred the case to the ECHR as an alleged violation of Convention Article 46.4. In 2019, the ECHR Grand Chamber examined the case and declared Azerjaiban in violation of Convention Article 46.4 and referred the case back to the CoM. Azerbaijan then acquitted and released Mammadov, as indicated in its Action Report and in Mammadov's confirming communication (both June, 2020).

Sources:

https://en.wikipedia.org/wiki/Council_of_Europe
See: Criticism and controversies

https://hudoc.echr.coe.int/eng?i=001-193543

https://hudoc.exec.coe.int/eng?i=004-49189

https://hudoc.exec.coe.int/eng?i=DH-DD(2020)486E

https://hudoc.exec.coe.int/eng?i=DH-DD(2020)365E

Last edited by Numbers; 11th January 2022 at 01:33 AM.
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Old 12th January 2022, 11:35 AM   #2204
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Originally Posted by Bill Williams View Post
We're going in circles. Of course it is 'obligated'. But until the keepers of international law send in the troops to enforce the law, issue arrests, or collect fines....

..... there's no merit to the obligation.
Maybe, but Amanda still has significant internet and media presence. If Italy were to be non-compliant in any way with the ECHR judgement, then the world would know about it.

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Old 12th January 2022, 12:03 PM   #2205
Numbers
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Originally Posted by Bill Williams View Post
We're going in circles. Of course it is 'obligated'. But until the keepers of international law send in the troops to enforce the law, issue arrests, or collect fines....

..... there's no merit to the obligation.
Originally Posted by Stacyhs View Post
At this point, the ECHR is a toothless tiger. However, Italy did pay the fine to Amanda which at least shows an acknowledgement that they have an obligation to abide by its rulings. We can only hope they will follow through with the rest.
Originally Posted by Numbers View Post
The statements above are, of course, accurate.

The ECHR has the authority to declare judgments and to order immediate measures (in cases of urgency) while the CoM has the authority to supervise the execution of those judgments and immediate measures by each respondent State.

There are, however, two enforcement methods that potentially may influence a respondent State to abide by its commitments to the Convention:

....[/url]
Originally Posted by TomG View Post
Maybe, but Amanda still has significant internet and media presence. If Italy were to be non-compliant in any way with the ECHR judgement, then the world would know about it.

Hoots
For more information on the issue of respondent States not abiding by ECHR final judgments, see:

https://en.wikipedia.org/wiki/Europe...f_Human_Rights
under the heading "Effectiveness" and in particular the subheading "Implementation".

Here's a relevant quote from the above Wikipedia article; the data on non-implemented cases are from the end of 2016 and may not be valid currently:

Quote:
The number of non-implemented judgements rose from 2,624 in 2001 to 9,944 at the end of 2016, 48% of which had gone without implementation five years or more. In 2016, all but one of the 47 member countries of the Council of Europe had not implemented at least one ECtHR verdict in a timely fashion, although most non-implemented verdicts concern a few countries: Italy (2,219), Russia (1,540), Turkey (1,342), and Ukraine (1,172). More than 3,200 non-implemented judgements "concerned violations by security forces and poor detention conditions".
According to HUDOC EXEC, Italy currently (12 January 2022) has 54 pending leading cases and 110 pending other cases (repetitive or friendly settlement) awaiting final resolution, with 4146 cases of all types closed by final resolution. See (with appropriate filters in place):

https://hudoc.exec.coe.int

Last edited by Numbers; 12th January 2022 at 12:19 PM.
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Old 12th January 2022, 12:26 PM   #2206
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Too bad some rich supporter doesn't say s/he'll foot the bill for Amanda to sue Italy.

If Amanda started a Go Fund Me in order to be able to go ahead and sue Italy, I can just hear the howls from the PGP now.
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Old 12th January 2022, 09:36 PM   #2207
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Originally Posted by Numbers View Post
....

According to HUDOC EXEC, Italy currently (12 January 2022) has 54 pending leading cases and 110 pending other cases (repetitive or friendly settlement) awaiting final resolution, with 4146 cases of all types closed by final resolution. See (with appropriate filters in place):

https://hudoc.exec.coe.int
I've done some analysis of Italy's track record for the final resolution of leading ECHR cases compared to that of some of the other States based upon information in the HUDOC EXEC database. The data and analysis are current as of 12 January 2022.

Italy's percent of pending (open) leading cases out of total (pending + closed) leading cases before the Committee of Ministers is slightly less than the percentage for all 37 Council of Europe States combined:

Italy has a ratio of pending/total leading cases of 54/218 = 24.8% while all 37 CoE States combined have a ratio of 1251/4678 = 26.7%.

In contrast, three other large population western democracies have lower ratios; the UK's is 11/211 = 5.2%, France's is 24/304 = 7.9%, and Germany's is 13/84 = 15.5%.

On the other hand, some of the former Soviet bloc countries have much larger ratios: Ukraine's ratio is 104/209 = 49.8%, Russia's is 214/298 = 71.8%, and Azerbaijan's is 48/53 = 90.6%.

Italy has the second-oldest pending leading case amongst all the CoE States, with ECHR final judgment date 09/1997. The oldest pending case, against Turkey, has ECHR final judgment date 08/1993. For the other countries mentioned above, the oldest pending leading cases are against the UK (08/2001) and Russia (10/2002).

There certainly isn't enough information available to make a reasonable estimate of when the Committee of Ministers will declare the final resolution of the ECHR case Knox v. Italy. The CoM will only declare a final resolution if and when it is satisfied that the Individual and General Measures proposed and carried out by Italy are sufficient to redress the violations of Knox's rights and would tend to prevent future violations of the same nature.

Last edited by Numbers; 12th January 2022 at 10:32 PM.
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Old 14th January 2022, 12:06 PM   #2208
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Originally Posted by Numbers View Post

There certainly isn't enough information available to make a reasonable estimate of when the Committee of Ministers will declare the final resolution of the ECHR case Knox v. Italy. The CoM will only declare a final resolution if and when it is satisfied that the Individual and General Measures proposed and carried out by Italy are sufficient to redress the violations of Knox's rights and would tend to prevent future violations of the same nature.


Italy may be fully compliant with the ECHR judgement by providing legal guidelines to make sure that the violations are not repeated. They may also be fully compliant with reopening the calunnia trial according to the amended article 630, but if Amanda is personally unwilling to participate in the reopened trial they may then say that they have gone as far as they can in resolving the issue. They could then argue that if Amanda is not willing to participate in the reopened proceedings then why did she submit the complaint to the ECHR in the first place? TBH I'd have to agree.

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Last edited by TomG; 14th January 2022 at 12:08 PM.
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Old 14th January 2022, 01:13 PM   #2209
Numbers
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Originally Posted by TomG View Post

Italy may be fully compliant with the ECHR judgement by providing legal guidelines to make sure that the violations are not repeated. They may also be fully compliant with reopening the calunnia trial according to the amended article 630, but if Amanda is personally unwilling to participate in the reopened trial they may then say that they have gone as far as they can in resolving the issue. They could then argue that if Amanda is not willing to participate in the reopened proceedings then why did she submit the complaint to the ECHR in the first place? TBH I'd have to agree.

Hoots
TomG, you've raised an interesting question (or series of questions) related to Italian law and ECHR/CoM law.

First, let's consider issues of Italian law relating to revision hearings.

CPP Article 629 provides that: Revision of a judgment of conviction may be {requested and} performed at any time in accordance with the cases allowed under the law {CPP Article 630 and Constitutional Court judgment Number 113 of 2011} at any time, even if the sentence has already been enforced or otherwise extinguished.

CPP Article 632 paragraph 1, section A) provides that: A convicted person or one next of kin or convicted person's guardian and, if the convicted person is deceased, his heir or next of kin may request revision of an allegedly {unfair (wrongful) in terms of the criteria of CPP Article 630 or Const. Court judgment No. 113/2011} conviction.

So it appears that Italy could not lawfully argue that Knox must ask for revision during some specific period of time that Italy proposes to the CoM.

Secondly, the ECHR judgment and CoM supervision are binding (within the margin of appreciation) on the States. While the ECHR will decide to cancel proceedings if an applicant does not respond to a request for information within a specific time, it is not clear to me that the CoM has a similar mechanism for cancelling supervision if the applicant does not act within a certain time based on a State's Action Plan. However, if the applicant writes to the CoM that he or she no longer wishes to pursue the matter, I suggest that the Individual Measures would be thus limited.

Thirdly, it does not appear to me, from Italian law, that Knox could be required to be present for a revision hearing. However, Knox might need to be present for any subsequent lawsuit to recover financial damages.

Last edited by Numbers; 14th January 2022 at 02:14 PM.
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Old 14th January 2022, 02:26 PM   #2210
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Originally Posted by Numbers View Post
TomG, you've raised an interesting question (or series of questions) related to Italian law and ECHR/CoM law.

First, let's consider issues of Italian law relating to revision hearings.

CPP Article 629 provides that: Revision of a judgment of conviction may be {requested and} performed at any time in accordance with the cases allowed under the law {CPP Article 630 and Constitutional Court judgment Number 113 of 2011} at any time, even if the sentence has already been enforced or otherwise extinguished.

CPP Article 632 paragraph 1, section A) provides that: A convicted person or one next of kin or convicted person's guardian and, if the convicted person is deceased, his heir or next of kin may request revision of an allegedly {unfair (wrongful) in terms of the criteria of CPP Article 630 or Const. Court judgment No. 113/2011} conviction.

So it appears that Italy could not lawfully argue that Knox must ask for revision during some specific period of time that Italy proposes to the CoM.

Secondly, the ECHR judgment and CoM supervision are binding (within the margin of appreciation) on the States. While the ECHR will decide to cancel proceedings if an applicant does not respond to a request for information within a specific time, it is not clear to me that the CoM has a similar mechanism for cancelling supervision if the applicant does not act within a certain time based on a State's Action Plan. However, if the applicant writes to the CoM that he or she no longer wishes to pursue the matter, I suggest that the Individual Measures would be thus limited.

Thirdly, it does not appear to me, from Italian law, that Knox could be required to be present for a revision hearing. However, Knox might need to be present for any subsequent lawsuit to recover financial damages.
Here's a quote from a CoM website:

Quote:
Under Article 46 of the European Convention on Human Rights, judgments from the European Court of Human Rights are binding on the states concerned. The Committee of Ministers oversees the execution of judgments on the basis of information provided by the national authorities concerned, NGOs and other interested parties.
Source: https://www.coe.int/en/web/baku/-/im...ters-decisions

The text of Convention Article 46 makes no mention of any requirements on the applicant. See:

https://www.echr.coe.int/Documents/Convention_ENG.pdf

Here are some relevant excerpts from Article 46:

Quote:
ARTICLE 46
Binding force and execution of judgments
1. The High Contracting Parties undertake to abide by the final
judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the
Committee of Ministers, which shall supervise its execution.
3. If the Committee of Ministers considers that the supervision
of the execution of a final judgment is hindered by a problem of
interpretation of the judgment, it may refer the matter to the Court
for a ruling on the question of interpretation. A referral decision
shall require a majority vote of two-thirds of the representatives
entitled to sit on the committee.
4. If the Committee of Ministers considers that a High
Contracting Party refuses to abide by a final judgment in a case to
which it is a party, it may ... refer to the Court
the question whether that Party has failed to fulfil its obligation
under paragraph 1.
5. If the Court finds a violation of paragraph 1, it shall
refer the case to the Committee of Ministers for consideration
of the measures to be taken. ....
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Old 15th January 2022, 07:16 PM   #2211
Bill Williams
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The cost of a wrongful conviction. At 74 years old, she was exonerated after 27 years in prison. This, even though the pediatrician who'd testified against her admitted years later that her conclusions had been wrong.

https://www.cnn.com/2022/01/14/us/wo...rnd/index.html

The woman's co-accused/wrongfully convicted died just before his release.
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Old 15th January 2022, 09:54 PM   #2212
Numbers
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Originally Posted by TomG View Post
[/hilite]

Italy may be fully compliant with the ECHR judgement by providing legal guidelines to make sure that the violations are not repeated. They may also be fully compliant with reopening the calunnia trial according to the amended article 630, but if Amanda is personally unwilling to participate in the reopened trial they may then say that they have gone as far as they can in resolving the issue. They could then argue that if Amanda is not willing to participate in the reopened proceedings then why did she submit the complaint to the ECHR in the first place? TBH I'd have to agree.

Hoots
Originally Posted by Numbers View Post
TomG, you've raised an interesting question (or series of questions) related to Italian law and ECHR/CoM law.

First, let's consider issues of Italian law relating to revision hearings.

CPP Article 629 provides that: Revision of a judgment of conviction may be {requested and} performed at any time in accordance with the cases allowed under the law {CPP Article 630 and Constitutional Court judgment Number 113 of 2011} at any time, even if the sentence has already been enforced or otherwise extinguished.

CPP Article 632 paragraph 1, section A) provides that: A convicted person or one next of kin or convicted person's guardian and, if the convicted person is deceased, his heir or next of kin may request revision of an allegedly {unfair (wrongful) in terms of the criteria of CPP Article 630 or Const. Court judgment No. 113/2011} conviction.

So it appears that Italy could not lawfully argue that Knox must ask for revision during some specific period of time that Italy proposes to the CoM.

Secondly, the ECHR judgment and CoM supervision are binding (within the margin of appreciation) on the States. While the ECHR will decide to cancel proceedings if an applicant does not respond to a request for information within a specific time, it is not clear to me that the CoM has a similar mechanism for cancelling supervision if the applicant does not act within a certain time based on a State's Action Plan. However, if the applicant writes to the CoM that he or she no longer wishes to pursue the matter, I suggest that the Individual Measures would be thus limited.

Thirdly, it does not appear to me, from Italian law, that Knox could be required to be present for a revision hearing. However, Knox might need to be present for any subsequent lawsuit to recover financial damages.
TomG, to help analyze some of the important issues you have brought up, it may be useful to consider other ECHR cases that have some similarity to Knox v. Italy but also have some important differences.

One such case is Beuze v. Belgium [GC] 71409/10 9 Nov. 2018. Beuze was suspected of the murder of his girl friend and the attempted murder and rape of another woman. He was questioned by the police and held in police custody for some time without access to a lawyer. He denied these crimes but made several statements that were transparently likely false and/or clearly contradictory. He admitted being present during the murder (he claimed that he had been present when his girlfriend's son hit her with a hammer, and had attempted to stop the murder by grabbing the hammer). He had, previous to the murder, hit his girlfriend with his car, which he explained as unintentional and due to the car skidding.

There was also some arguably strong evidence against Beurze independent of his statements.

The ECHR did find that Beuze's trial had been unfair because of the lack of a lawyer during questioning and initial custody, and by the failure of the Belgian courts to adequately evaluate or restrict the evidence obtained from Beuze's statements made without a lawyer. However, the ECHR emphasized that while Beuze was thus entitled to a revision trial under Belgian law, it was not making any judgment about Beuze's guilt or innocence.

Here's the ECHR's conclusions (inline citations deleted for brevity):

Quote:
193. In conclusion, re-emphasising the very strict scrutiny that must be applied where there are no compelling reasons to justify the restriction on the right of access to a lawyer, the Court finds that the criminal proceedings brought against the applicant, when considered as a whole, did not cure the procedural defects occurring at the pre-trial stage, among which the following can be regarded as particularly significant:

{Five critical factors are listed in the text of the judgment, but for brevity are not shown in this quote.}

194. The Court finds it important to emphasise, as it has done in other cases under Article 6 § 1 of the Convention in which an assessment of the overall fairness of the proceedings was at issue, that it is not for the Court to act as a court of fourth instance .... In carrying out such an assessment, as required by Article 6 § 1, it must nevertheless carefully look at how the domestic proceedings were conducted, and very strict scrutiny is called for where the restriction on the right of access to a lawyer is not based on any compelling reasons. In the present case, it is the combination of the various above-mentioned factors, and not each one taken separately, which rendered the proceedings unfair as a whole.

195. Accordingly, there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
....

199. As the Court has found on many occasions, it does not follow from the Court’s finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention in the applicant’s case that he was wrongly convicted and it is impossible to speculate as to what might have occurred had there been no breach of the Convention .... In the circumstances of the present case, the Court takes the view that a finding of a violation constitutes in itself sufficient just satisfaction and it thus rejects the applicant’s claim.

200. The Court notes that Article 442bis of the {Belgian} Code of Criminal Procedure provides for the possibility of reopening the proceedings against a convicted person {based on a final judgment of the ECHR}.... It reiterates in this connection that while this may be regarded as an important aspect of the execution of its judgments, the reopening of proceedings is not the only way to execute a judgment of the Court. The use of this possibility in the present case will be a matter for assessment, if appropriate, by the Court of Cassation, having regard to domestic law and to the particular circumstances of the case.... It is for the national authorities and not the Court to settle this question.
See: https://hudoc.echr.coe.int/eng?i=001-187802

Beuze v. Belgium was finally resolved to the satisfaction of the CoM in February, 2020.

Here's the CoM's Status of Execution statement:

Quote:
Case closed. Main measures adopted:

Individual measures: The finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage. The applicant did not avail himself of the opportunity to request reopening of the impugned proceedings.

General measures: The legislative reform “Salduz”, which had been initiated after 2008 to take account of the evolution of ECtHR jurisprudence with regard to access rights to a lawyer, lead to the adoption of laws in 2011 and 2016 granting full access rights to legal assistance as from arrest and during interrogations by police and investigating judges at pre-trial stage as well as all subsequent investigative acts. Detailed information on the right to remain silent should also be communicated. Measures to implement the reform on a practical level were taken and its application is regularly reviewed. The judgement was published and disseminated to all authorities and courts concerned.
See: https://hudoc.exec.coe.int/eng?i=004-50769

According to the Action Report submitted by Belgium, Beuze did not request a revision of his conviction within the period (six-months after the date of the final ECHR judgment) legally established {presumably prior to the case*} in Article 442bis of the Belgian Code of Criminal Procedure:

Quote:
La Cour note que l’article 442bis du Code d’instruction criminelle ouvre la possibilité d’une réouverture de la procédure menée contre un condamné, en rappelant toutefois que la révision du procès n’est pas la seule façon d’exécuter un arrêt de la Cour. « La mise en œuvre de cette possibilité en l’espèce sera examinée, le cas échéant, par la Cour de cassation au regard du droit national et des circonstances particulières de l’affaire. Il appartient aux autorités nationales et non à la Cour de trancher cette question » (§ 200).

Force est de constater que le requérant n’a toutefois pas usé, dans le délai légal requis (soit au plus tard le 9 mai 2019 – six mois après l’arrêt définitif de la Cour), de sa possibilité d’introduire auprès de la Cour de cassation une demande de réouverture de la procédure pénale le concernant.

Par conséquent, au vu de ces éléments, les autorités considèrent qu’aucune mesure individuelle n’est encore requise aux fins de l’exécution de l’arrêt Beuze, définitif depuis le 9 novembre 2018.
See: https://hudoc.exec.coe.int/eng?i=DH-DD(2019)1495F

The differences between Knox v. Italy and Beuze v. Belgium are clear.

1. Knox v. Italy only concerned Knox's conviction for calunnia - charges based upon the statements she had made without a lawyer, in which the statements themselves were allegedly criminal under Italian law and legal precedent (CSC decisions).

2. There is no other actual evidence of Knox's alleged calunnia then those statements. However, Italy may falsely claim that there is other evidence, as in the Marasca CSC panel MR, in order to wrongfully deny revision.

3. There is no time limit under Italian law to apply for revision after a final judgment of the ECHR.

4. In Knox v. Italy, the ECHR seems to suggest, by listing these laws as applicable to the case, that under Italian laws (CPP Articles 178, 180, and 182), the lack of a lawyer during any of the judicial proceedings may be considered to result in a nullity (that is, as though the case never happened). Under ECHR case-law, the judicial proceedings against a person in a criminal case are considered to begin with the first interrogation of that person who is later brought to trial. According to CPP Article 178, representation by a lawyer [in criminal judicial proceedings] is considered mandatory and failure to comply with this results in a nullity. CPP Articles 63 and 64, among others, clearly indicate that Italian law requires the presence of a defense lawyer during interrogation.

5. The ECHR awarded Knox Just Satisfaction. It tends not to make such awards if it considers that the applicant is likely to be guilty but had been the victim of a procedural violation (and there are no violations of, for example, Articles 2 or 3).

See: https://hudoc.echr.coe.int/eng?i=001-189422
Paragraph 105: Articles 178, 180, 182

* This provision was apparently added to the Belgian Code of Criminal Procedure Article 442 in 2007.

See: https://www.senate.be/www/webdriver?...alObj=50335657

Last edited by Numbers; 15th January 2022 at 10:33 PM.
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Old Yesterday, 11:19 AM   #2213
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Originally Posted by Numbers View Post
TomG, to help analyze some of the important issues you have brought up, it may be useful to consider other ECHR cases that have some similarity to Knox v. Italy but also have some important differences.

One such case is Beuze v. Belgium [GC] 71409/10 9 Nov. 2018. Beuze was suspected of the murder of his girl friend and the attempted murder and rape of another woman. He was questioned by the police and held in police custody for some time without access to a lawyer. He denied these crimes but made several statements that were transparently likely false and/or clearly contradictory. He admitted being present during the murder (he claimed that he had been present when his girlfriend's son hit her with a hammer, and had attempted to stop the murder by grabbing the hammer). He had, previous to the murder, hit his girlfriend with his car, which he explained as unintentional and due to the car skidding.

There was also some arguably strong evidence against Beurze independent of his statements.

The ECHR did find that Beuze's trial had been unfair because of the lack of a lawyer during questioning and initial custody, and by the failure of the Belgian courts to adequately evaluate or restrict the evidence obtained from Beuze's statements made without a lawyer. However, the ECHR emphasized that while Beuze was thus entitled to a revision trial under Belgian law, it was not making any judgment about Beuze's guilt or innocence.

Here's the ECHR's conclusions (inline citations deleted for brevity):



See: https://hudoc.echr.coe.int/eng?i=001-187802

Beuze v. Belgium was finally resolved to the satisfaction of the CoM in February, 2020.

Here's the CoM's Status of Execution statement:



See: https://hudoc.exec.coe.int/eng?i=004-50769

According to the Action Report submitted by Belgium, Beuze did not request a revision of his conviction within the period (six-months after the date of the final ECHR judgment) legally established {presumably prior to the case*} in Article 442bis of the Belgian Code of Criminal Procedure:



See: https://hudoc.exec.coe.int/eng?i=DH-DD(2019)1495F

The differences between Knox v. Italy and Beuze v. Belgium are clear.

1. Knox v. Italy only concerned Knox's conviction for calunnia - charges based upon the statements she had made without a lawyer, in which the statements themselves were allegedly criminal under Italian law and legal precedent (CSC decisions).

2. There is no other actual evidence of Knox's alleged calunnia then those statements. However, Italy may falsely claim that there is other evidence, as in the Marasca CSC panel MR, in order to wrongfully deny revision.

3. There is no time limit under Italian law to apply for revision after a final judgment of the ECHR.

4. In Knox v. Italy, the ECHR seems to suggest, by listing these laws as applicable to the case, that under Italian laws (CPP Articles 178, 180, and 182), the lack of a lawyer during any of the judicial proceedings may be considered to result in a nullity (that is, as though the case never happened). Under ECHR case-law, the judicial proceedings against a person in a criminal case are considered to begin with the first interrogation of that person who is later brought to trial. According to CPP Article 178, representation by a lawyer [in criminal judicial proceedings] is considered mandatory and failure to comply with this results in a nullity. CPP Articles 63 and 64, among others, clearly indicate that Italian law requires the presence of a defense lawyer during interrogation.

5. The ECHR awarded Knox Just Satisfaction. It tends not to make such awards if it considers that the applicant is likely to be guilty but had been the victim of a procedural violation (and there are no violations of, for example, Articles 2 or 3).

See: https://hudoc.echr.coe.int/eng?i=001-189422
Paragraph 105: Articles 178, 180, 182

* This provision was apparently added to the Belgian Code of Criminal Procedure Article 442 in 2007.

See: https://www.senate.be/www/webdriver?...alObj=50335657

I think that a re-opening of legal proceedings is a non-starter from what Amanda has said. I agree that Amanda shouldn't even have to testify in court or take action that in any way would legitimise the calunnia conviction. The violations "undermined" and "compromised the fairness of the proceedings as a whole"; therefore, there should be some mechanism in place that would allow Italy to overturn the conviction with no further distress to the injured party (Amanda). I think that's what Amanda should be gunning for. An 80k Euro outlay to fight the conviction is completely outrageous as far as I'm concerned.

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Old Yesterday, 12:04 PM   #2214
Numbers
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Originally Posted by TomG View Post
I think that a re-opening of legal proceedings is a non-starter from what Amanda has said. I agree that Amanda shouldn't even have to testify in court or take action that in any way would legitimise the calunnia conviction. The violations "undermined" and "compromised the fairness of the proceedings as a whole"; therefore, there should be some mechanism in place that would allow Italy to overturn the conviction with no further distress to the injured party (Amanda). I think that's what Amanda should be gunning for. An 80k Euro outlay to fight the conviction is completely outrageous as far as I'm concerned.

Hoots
There is a legal mechanism by which Italy could begin the revision process without any involvement from Knox.

According to CPP Article 632, paragraph 1, section B, the General Public Prosecutor attached to the Court of Appeal in the district where the conviction occurred may bring a request for revision. The convicted person is allowed to join such action.

Again, there is no time limit for applying for revision in Italy, whether the application is by the convicted person or a prosecutor.

One potentially important limitation on applications for revision is contained in the text of CPP Article 641. According to that article, if a request for revision is rejected as inadmissible or if a revision is finally rejected, a new request may be submitted, but the arguments for revision must be different than those in the rejected request. This could be a "gotcha" if, for example, the Italian courts finally reject a request and there is only one reasonable argument supporting the request. CPP Article 641 suggests a need for caution in proceeding with a request for revision without some assurance that the courts would not wrongfully reject it. This may be one reason for caution on the part of Knox and her lawyers.

BTW, the slowness of the Italian judicial system is well-known. Here's a report on a civil case in which neighbors complained of a noisy toilet (apparently in an adjacent flat or dwelling) in a case which began in 2003 and which was just resolved (in 2022), 19 years later. As stated in the Independent:

Quote:
The toilet saga highlights the glacial speed of the Italian justice system, something the country’s prime minister Mario Draghi pledged to address last year.

The resolution of the bathroom dispute took longer than Albert Einstein did to develop his theory of relativity, one Italian newspaper remarked.

“If Franz Kafka had been an Italian citizen of today he would not have written ’The Trial,’ he would have written ‘The Toilet’ to describe justice in our country,” the journalist Massimiliano Parente wrote in the Milanese daily Il Giornale.

“At the judicial level, we are a big, huge, gigantic clogged toilet,” he added.
Source: https://www.independent.co.uk/news/w...-b1996269.html

Last edited by Numbers; Yesterday at 12:14 PM.
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Old Yesterday, 04:56 PM   #2215
Stacyhs
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Originally Posted by Numbers View Post
There is a legal mechanism by which Italy could begin the revision process without any involvement from Knox.

According to CPP Article 632, paragraph 1, section B, the General Public Prosecutor attached to the Court of Appeal in the district where the conviction occurred may bring a request for revision. The convicted person is allowed to join such action.

Again, there is no time limit for applying for revision in Italy, whether the application is by the convicted person or a prosecutor.

One potentially important limitation on applications for revision is contained in the text of CPP Article 641. According to that article, if a request for revision is rejected as inadmissible or if a revision is finally rejected, a new request may be submitted, but the arguments for revision must be different than those in the rejected request. This could be a "gotcha" if, for example, the Italian courts finally reject a request and there is only one reasonable argument supporting the request. CPP Article 641 suggests a need for caution in proceeding with a request for revision without some assurance that the courts would not wrongfully reject it. This may be one reason for caution on the part of Knox and her lawyers.

BTW, the slowness of the Italian judicial system is well-known. Here's a report on a civil case in which neighbors complained of a noisy toilet (apparently in an adjacent flat or dwelling) in a case which began in 2003 and which was just resolved (in 2022), 19 years later. As stated in the Independent:



Source: https://www.independent.co.uk/news/w...-b1996269.html
I think that is true!
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