ECHR: Convention Violations and Case-Law

ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Feb 16, 2015 4:23 pm

The intent of this thread is to examine, and list in an orderly fashion (insofar as readily possible) the violations of the European Convention of Human Rights (the Convention) and the European Court of Human Rights (ECHR) case-law that have been committed (in the opinion of posters here) by Italy in the case against Amanda Knox and Raffaele Sollecito. Much of the information to be posted in this thread has already been posted in the European Court of Human Rights thread, originated by Clive. However, in this thread, the focus will be on violations and on keeping descriptions of cases short. (And I have been responsible for not briefly and effectively summarizing many of the cases that I posted!)

Sources:

1. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{%22documentcollectionid2%22:%5B%22GRANDCHAMBER%22,%22CHAMBER%22%5D} {ECHR Document database search page}

2. http://www.echr.coe.int/Pages/home.aspx?p=home {ECHR home page; provide access to many documents such as the text of the Convention, Rules of the Court, Application instructions, Guides on Case-Law, and yearly compilations of notable case judgments.}
Expert witness testimony must be the product of reliable principles and methods. {Paraphrase of Fed. Rules of Evidence 702c}
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Feb 16, 2015 4:25 pm

There are three approaches to evaluating the unfairness in Amanda Knox's conviction for calunnia in respect to ECHR case-law; these three approaches are evaluations of:

1. The alleged unfairness of the conviction by the court presided over by judge Claudio Hellmann.

2. The alleged unfairness resulting from the absence of legal counsel, and of a neutral interpreter, during the interrogation of November 5/6, 2007, and of legal counsel from the time of arrest until the time of the confirmation of arrest hearing, including November 6 until November 8.

3. The alleged unfairness resulting from subjecting Amanda Knox to inhuman and degrading treatment to obtain statements from Amanda Knox incriminating to Amanda Knox and to another person, Patrick Lumumba.
Expert witness testimony must be the product of reliable principles and methods. {Paraphrase of Fed. Rules of Evidence 702c}
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Feb 16, 2015 4:29 pm

1. The alleged unfairness of the conviction by the court presided over by judge Claudio Hellmann.

The Hellmann court motivation report providing the rationale for the conviction was contradictory. It provided a description of the many conditions that made Amanda Knox vulnerable to coercion and pyschological manipulation, and states that she was under considerable pressure to name a murderer.

This is the translated text of the Hellman court motivation report detailing in regards to the interrogation the vulnerabilities of, and pressures on, Amanda Knox:

The obsessive length of the interrogations, carried out during [both] day and night, by more than one person, on a young and foreign girl who at the time did not speak Italian at all well, was unaware of her own rights, did not have the assistance of an attorney (which she should have been entitled to, being at this point suspected of very serious crimes), and was moreover being assisted by an interpreter who — as shown by Ms. Bongiorno [defense attorney] — did not limit herself to translating, but induced her to force herself to remember, explaining that she [Amanda] was confused in her memories, perhaps because of the trauma she experienced, makes it wholly understandable that she was in a situation of considerable psychological pressure (to call it stress seems an understatement [appare riduttivo]), enough to raise doubts about the actual spontaneity of her statements; a spontaneity which would have strangely [singolarmente] arisen in the middle of the night, after hours and hours of interrogation: the so-called spontaneous statements were made at 1:45 am (middle of the night) on 11-6-2007 (the day after the interrogation had started) and again at 5:45 am afterward, and the note was written a few hours later.

….Amanda Knox, who at the beginning had no reason to be afraid, went into a state of oppression and stress precisely as a result of her interrogation and the way it was conducted.

... it is understandable that Amanda Knox, yielding to pressure and fatigue, would have hoped to put an end to that situation by giving her interrogators that which, in the end, they wanted to hear: a name, a murderer.




The reasoning finding guilt includes the arbitrary opinion that even the aim of escaping from a particularly oppressive personal situation of considerable psychological pressure and stress does not exclude a condition of not intending or wishing, so that there is responsibility for the crime. The crime of calunnia requires that the person making the accusation must know it was false. Therefore, another set of reasons was adopted to demonstrate that Amanda Knox should have known Patrick Lumumba totally innocent: 1) the police put forth her text message to Patrick Lumumba as a suggestion of Lumumba's name, and 2) Lumumba did not have a connection with Meredith Kercher, Amanda Knox should he was clearly innocent. However, neither of these reasons is logically sufficient to show that Lumumba was indeed innocent. Amanda Knox had no actual knowledge of his activities or location with the possible exception of his earler text message to her, and in fact Lumumba had met Meredith, but there is no logical reason to consider the murder to have been committed by someone either known or unknown to Meredith. Thus the reasoning finding guilt is arbitrary.

This is the translated text of the Hellman court motivation report detailing the reasoning for the finding that Amanda is guilty of calunnia in naming Patrick Lumumba:

However, this Court does not find that there is any significant objective evidence that, when she made her spontaneous statements and wrote her note, Amanda Knox was in not only a situation of considerable psychological pressure and stress but also even in a condition of not intending or wishing; so that, having accused of such a serious crime a person whom she knew to be innocent, she must in any case be held responsible for the crime of calumny, the constitution of which does not require any specific purpose from a psychological point of view, such as shifting the blame off of oneself [conseguire la propria impunità] (an aggravating circumstance alleged [here]). Generic criminal intent [il dolo generico] is sufficient, thus including the aim of escaping from a particularly oppressive personal situation.

...the circumstances under which Lumumba’s name emerged in the course of the police interrogation (a message directed to him taken from the cellular phone of Amanda Knox), and the lack of evidence of a connection between Lumumba and Meredith Kercher [should have] allowed Amanda Knox, even if actually innocent herself and far from the house on Via Della Pergola at the time of the crime, to be aware of Lumumba’s total innocence, and thus of the calumny that she was committing by pointing to him as the perpetrator of the murder.



Another issue with the Hellmann court motivation report is that it does not at all address the defense argument relating to false memory syndrome, the report of the defense expert Carlo Caltagirone. The failure to address this important argument of the defense makes the motivation report arbitrary and manifestly unreasoned in respect to the naming of Patrick Lumumba.

Therefore, because of the contradiction between the motivation report detailing the vulnerability of Amanda Knox to coercion and psychological manipulation during the interrogation but, however, providing an arbitrary reasoning and and no reasonable explanation for why she would know Patrick Lumumba was indeed innocent of the crimes against Meredith Kercher the ECHR would find the conviction for calunnia unfair, a violation of Convention Article 6.1. The failure to evaluate an important defense argument in the motivation report, the expert opinion relating to false memory, indicates a defect in the adversarial nature of the trial and a manifestly unreasonable judgment, a further violation of Convention Article 6.1.

Case-law supporting the above analysis includes: 1) for arbitrary reasoning in a judgment as a violation of Convention Article 6.1, Bochan v. Ukraine (No. 2) [GC] 22251/08 §61; Khamidov v. Russia 72118/01 §170; 2) for the unreasonable failure to take into account an expert opinion from the defense, Matytsina v. Russia 58428/10 §207.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Feb 16, 2015 4:32 pm

2. The alleged unfairness resulting from the absence of legal counsel during the interrogation of November 5/6, 2007, and of legal counsel from the time of arrest until the time of the confirmation of arrest hearing, including November 6 until November 8.

The evaluation of this allegation may be best accomplished using the criteria specified in the case of Ibrahim and others v. the United Kingdom, 50541/08 §196:

Pre-trial statements obtained in the absence of procedural guarantees should be treated with caution. When deciding whether the admission of a statement made without legal assistance was compatible with Article 6, the Court will examine, in so far as relevant to the case before it:

(a) the general legislative framework applicable and any safeguards it contains;

The the safeguards of the Italian laws concerning interrogations, admission of evidence, and appointment of lawyers for suspects under interrogations were not followed in this case. For example, statements made by a person under interrogation without legal counsel were specifically deemed admissible as evidence in regards to the crime of calunnia. The legislative framework and safeguards include, but may not be limited to, the following:

CPP Article 63 Incriminating statements
CPP Article 64 General rules for questioning
CPP Article 65 Questioning on the merits of the case
CPP Article 97 Court-appointed lawyer
CPP Article 104 Communication between the lawyer and the accused person under precautionary detention
CPP Article 188 Moral freedom of the person during evidence gathering
CPP Article 191 Unlawfully gathered evidence

English translations of the texts of these CPP articles may be found in the Appendix.

(b) the quality of the evidence, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy; in this respect, improper conduct, notably coercion or ill-treatment, during interrogation and vulnerability of suspects are relevant factors;

There are numerous indications that the circumstances of how the evidence was obtained must cast doubt on its reliability and accuracy; this list is a based largely on the motivation report of the Hellmann court. Amanda Knox:

1. Did not have the assistance of an attorney - which she should have been entitled to, being at this point suspected of very serious crimes;
2. Had not been informed that she was a suspect, that she had the right to have an attorney during the interrogation, and that she had the right to remain silent;
3. Was assisted by an interpreter who did not limit herself to translating, but induced her to force herself to remember, explaining that Amanda was confused in her memories, perhaps because of the trauma she experienced;
4. Only made statements alleged to be calunnia during or immediately after being subjected to the interrogation which started at 10:30 pm on November 5, 2007, and continued until at least 5:45 am on November 6;
5. Was subjected to an interrogation in which many police officers – as many as 12 – participated in turns or simultaneously;
6. Has testified that during the interrogation of November 5/6 she was slapped on the back of the head twice by a female police officer, who stated that this was done to “get your attention”;
7. Was threatened with being sent to prison for a term of 30 years if she did not reveal the information she was allegedly hiding, that is, the name of the murderer;
8. Was told by the interrogators that her boy-friend (who was being coersively interrogated simultaneously in a different room) had withdrawn his support of her alibi;
9. Was subjected to a series of interrogations or interviews of great length – 32 hours over three 24 hour days – starting November 2, and conducted day and night prior to the interrogation in which the alleged calunnia statements were elicited;
10. Has stated (in Waiting to be Heard) that she was not allowed to visit the restroom during the November 5/6 interrogation, although she was menstruating and in discomfort;
11. Has stated (in Waiting to be Heard) that she was allowed or offered food and water during the November 5/6 interrogation only after she had signed the statements prepared by the police;
12. Has stated in notes written in English on November 6 and 7, 2007, that she made the statements were unreliable: “In regards to this "confession" that I made last night, I want to make clear that I'm very doubtful of the verity of my statements because they were made under the pressures of stress, shock and extreme exhaustion. Not only was I told I would be arrested and put in jail for 30 years, but I was also hit in the head when I didn't remember a fact correctly”;
13. Made statements in her own writing on November 6 and 7 while in police custody without the counsel of an attorney;
14. Made statements that were allegedly the substance of calunnia that were so vague in detail as not to be credible to a reasonable person;
15. Experienced great emotional distress during the November 5/6 interrogation, as evidenced by statements of the Director of the SCO police from Rome, Edgardo Giobbi, who testified that he could hear Amanda crying and screaming, although he was in a different room;
16. Was only a beginning speaker of Italian, the language of the interrogation, and was not informed that she had the right to a fair interpreter;
17. Was only 20-years-old at the time of the interrogations, and was unaware of her rights;
18. Was not provided with any transcript of the interrogation in either Italian or English, and apparently no such transcript or recording was made or provided to the defense, although the police had the capability of electronic audio recording and did audio record conversations in a public area of the police station in this case;
19. Signed statements that were termed spontaneous by the police and prosecution, but which had been prepared by the police in Italian, although her native language is English, in an Italian legalistic style, and which only were obtained “in the middle of the night, after hours and hours of interrogation: the so-called spontaneous statements were made at 1:45 am (middle of the night) on 11-6-2007 (the day after the interrogation had started) and again at 5:45 am afterward”.

(c) whether the statement was promptly retracted and the admissions made in it consistently denied, particularly once legal advice had been obtained;

Written statements, made without the assistance of counsel, were made by Amanda Knox on November 6 and 7, to indicate that her statements made during the interrogation of November 5/6 were not to be considered reliable. Amanda Knox apologized for naming Patrick Lumumba November 30, 2007.

(d) the procedural safeguards applied during the criminal proceedings, and in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use;

Amanda Knox was given the opportunity of challenging the authenticity and reliability of the statements she had made and of opposing their use in trial.

(e) the strength of the other evidence in the case.

The only evidence used to convict Amanda Knox of calunnia against Patrick Lumuba was the statements Amanda Knox made when she was, without legal counsel and without being informed of her rights, including the right to remain silent, coercively interrogated November 5/6, 2007 and detained in police custody from November 5, 2007 until November 8, 2007.

Thus, regarding the analysis in this section, the conviction was unfair because of the denial of access to an attorney during the interrogation and the failure to provide a fair interpreter, and as indicted by the detail indicated under point a) through e), including, for example, that the only alleged crime committed was one or more statements by Amanda Knox under coercive interrogation naming a person as a murderer as demanded by police and whose identity was suggested by police. The statements she wrote after interrogation while in police custody without an attorney also may not be used to convict her of any crime. Therefore, there has been an unfair conviction resulting from a violation of the Convention Article 6.3c and Article 6.3e with Article 6.1.

Case-law supporting this analysis includes Ibrahim and others v. the United Kingdom, 50541/08, and citations within, in particular Salduz v. Turkey [GC] 36391/02. Regarding the unfairness and violation of the Convention resulting from denial of the counsel of an attorney during police custody outside of questioning or interrogation, the case-law is Dayanan v. Turkey 7377/03.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Feb 16, 2015 4:35 pm

3. The alleged unfairness resulting from subjecting Amanda Knox to inhuman and degrading treatment to obtain statements from Amanda Knox incriminating to Amanda Knox and to another person, Patrick Lumumba.

The use in criminal proceedings of statements obtained as a result of a violation of Article 3 – irrespective of the classification of the treatment as torture, inhuman or degrading treatment – renders the proceedings as a whole automatically unfair, in breach of Article 6 . This also holds true for the use of real evidence obtained as a direct result of acts of torture. The admission of such evidence obtained as a result of an act classified as inhuman treatment in breach of Article 3, but falling short of torture, will only breach Article 6, however, if it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings against the defendant, that is, had an impact on his or her conviction or sentence.

The Court [ECHR] has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. Treatment has been held to be “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or psychological resistance, or when it was such as to drive the victim to act against his will or conscience.

Thus, the police interrogation which resulted in Amanda Knox signing two statements contrary to fact and achieved by humiliating and debasing her through coercive interrogation and breaking her psychological resistance, and thus driving her to sign the statements against her will and conscience, was a violation of Convention Article 3, prohibition of torture and inhuman and degrading treatment. The violation was in both the substantive and procedural aspects, because the Italian authorities did not investigate her allegations of mistreatment by the police, which she had made in a note given to the authorities on November 6, 2007, and subsequently in her court testimony. The evidence of the degrading treatment is detailed in the preceding section and the evidence included the two statements that she signed November 6 at 1:45 am and 5:45 am, and the two writings (Memoriales 1 and 2) she composed and gave to authorities on November 6 and 7, respectively.

The procedural violation is evidenced by the lack of any activity to effectively investigate the allegation of mistreatment, and the initiation of civil suits against Amanda Knox for calunnia against the police who interrogated her and of her parents for repeating her allegations to a newspaper reporter. These civil suits may be interpreted as attempts at retaliation in furtherance of maintaining the lack of an effective investigation. No doubt such civil suits may be considered an attempt by the authorities to discourage others who may seek to allege mistreatment at the hands of the police from making such allegations public.

Because the evidence used for her conviction for calunnia was solely derived from evidence derived from a violation of Convention Article 3, prohibition of degrading treatment, the conviction must be considered unfair and a violation of Convention Article 6.1.

Case-law for this analysis includes Gäfgen v. Germany [GC] 22978/05 § 89, 166-167, 178; Lyapin v. Russia 46956/09 § 114; El Haski v. Belgium 649/08 § 85; Jalloh v. Germany [GC] 54810/00 § 105; Labita v. Italy 26772/95 § 119-121 (and citations therein).
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Feb 16, 2015 6:45 pm

Did Police Conduct During the Interrogations of
Amanda Knox and Raffeale Sollecito
Violate Article 3 of the European Convention of Human Rights?



Alleged Violation of Article 3 – Prohibition of Torture and Inhuman and Degrading Treatment;
Substantive and Procedural Aspects

1. The Facts:

1. Amanda Knox and Raffaele Sollecito were each separately subjected to coercive interrogations November 5/6, 2007.

1.1 Raffaele was interrogated first, starting after 10:00 pm. Raffaele was pressured to recall events of the night of November 1, and in particular whether Amanda had gone out from his apartment. He was confused about which day of the week November 1 fell on, asked to see a calender, but was refused. The police asked him to empty his pockets - an indication that he was a suspect and not merely a witness. He asked, “Don't I have the right to a lawyer?” but the police told him no. A police officer told him, “If you try to get up and leave, I'll beat you into a pulp and kill you. I'll leave you in a pool of blood.” The police also took his shoes to determine if the soles matched with prints in blood at the cottage - further indication that he was a suspect.

1.2 The police prepared a statement for him to sign; it reflected his confusion of the events of October 31 and November 1. Raffaele stated: “By the time I read what the police had prepared, it was deep into the night, I was exhausted and scared, and I could no longer think straight. Absurd as it sounds, the statement struck me as accurate enough...I simply missed the fact that I was – from the investigators' point of view – cutting Amanda loose for the entire evening and depriving her of the only alibi she had.....At 3:30 [am]....I signed.”

1.3 Later in the morning, Raffaele was subjected to further interrogation, in the form of threats and insults, in an attempt to get him to produce more incriminating statements against Amanda. The police told him: “Your family will be destroyed. You'll spend the next thirty years in prison....You need to tell us what happened!” When the police decided he was not going to provide any more information, he was arrested and handcuffed. After that, one of the interrogators slapped him, saying: “Your father is a fine upstanding person. He doesn't even deserve a son like you, someone who would stand by a whore like Amanda.”

1.4 Amanda accompanied Raffaele to the police station because she was terrified to be alone. The police at first told her to wait in Raffaele's car, but they gave her a chair outside the waiting room after she told them she was afraid to be alone in the dark. As she waited, a police officer, Ivano Ruffo, sat next to her. He asked her, as she had been asked in previous visits to the police station, about who had been to the cottage – especially men.

1.5 Amanda did some stretches during this in-corridor questioning, and, asked what other exercises she could do, did the splits. At that point, police officer Rita Ficarra approached her, reprimanded her, and stated that if Amanda were to be asked questions, it should be put on the record. Ficarra led her into an office, and began questioning her. The first question was whether she had been honest in denying that the flat mates smoke marijuana. Amanda stated that she had been afraid to tell the police, but all of the flat mates, including Meredith, were occasional marijuana smokers, but that neither she nor Meredith bought any or knew any drug dealers. Then Ficarra closed the door; the officer from the corridor entered. The police announced they would call an interpreter.

1.6 The police began an interrogation, asking for a detailed account of her activity on November 1, with the exact minute-by-minute times. But Amanda had trouble remembering exact times, perhaps because the domestic, recreational, and romantic activities with Raffaele, her boyfriend, were not time-driven. And apparently the insistence of the interrogators that she remember, and her inability to remember exactly, led to her feeling increasing confusion “as if I were going totally blank”. Amanda was suffering from fatigue and exhaustion at this point; she had been interviewed by police a total of 32 hours over November 2 to 4. She writes: “I was exhausted. I hadn't slept but a few hours in the past four days, and the back-and-forth to the police station – on top of the shock I felt over Meredith – had left me empty. I didn't know I could say, 'We need to stop, because I am too tired'....I wanted so badly to appease them so they would go away.” Up to this point the questioning was in Italian, which Amanda did not always understand: “...[M]y Italian was ...[not] strong enough, after only six weeks in Italy, for me to be defending myself against accusations of murder.” The interpreter, Anna Donnino, arrived at about 12:30 am. “The interpreter … was irritated and impatient, as if I were the one who had roused her from bed in the middle of the night.”

1.7 Ficarra and the other police officer “were in the tiny room almost nonstop. When they left … other cops came to take their place.” Amanda was menstruating and had to use the bathroom, but was refused permission to leave. After that, she was “too afraid to ask.” At that point, police officer Monica Napoleoni opened the door and stated: “Raffaele says you left his apartment on Thursday night [November 1]. He says that you asked him to lie for you. He's taken away your alibi.”

1.8 At this point Amanda's cell phone was examined and her message to Patrick Lumumba was found. Patrick had texted Amanda on November 1, at about 8:00 pm, to tell her she did not need to come to work, because there were few customers that night. Amanda may have deleted his message to save phone memory. She had texted him back, as read to her by the police: “'Certo ci vediamo piu tardi buona serata.' - Okay, see you later, have a good evening.” The police maintained that this meant Amanda was going to meet Patrick later that evening; Amanda told them she had meant it as in English, “goodbye...see you eventually.” The interpreter then called her a liar. Amanda denied that she had left Raffaele's apartment that evening. The police kept insisting that she had, and that Raffaele said that she had. But, she states about her denials: “My protests seemed so flimsy, especially when they ganged up on me. I couldn't make them believe anything.” The police asked: “Who did you meet up with? Who are you protecting? Why are you lying? Who's this person? Who's Patrick?”

1.9 “The interpreter offered a solution. “Once, when I had an accident, I didn't remember it. I had a broken leg and it was traumatizing and I woke up afterward and didn't remember it. Maybe you just don't remember. Maybe that's why you can' remember times really well.” Police officers picked up on this statement and repeated that maybe Amanda was traumatized and therefore couldn't remember. The police yelled at her, and she yelled back. Amanda denied being traumatized. One of the police “pushed [her] cell phone, with the message to Patrick, in [her] face and screamed, 'You're lying. You sent a message to Patrick. Who's Patrick?'” This was followed by Ficarra slapping Amanda on the head, “to get [her] attention”. In her 2009 trial testimony, Amanda reported being hit (slapped) twice by the police. Amanda reports she felt overwhelmed by the police, people she trusted completely, who she had been taught to respect, who she was trying to help, yelling at her, not believing her.

1.10 The police continued to tell Amanda that she had been to her flat on the night of November 1, that she had left Raffaele's apartment, that Raffaele himself said that. They told her that she was traumatized and had amnesia. The verbal hammering - the shouting, the insistence that she didn't remember but should, to help the police, combined with her exhaustion made Amanda feel confused, frantic, and with no way to escape, she reports. One police office yelled a threat at her: she would be imprisoned for 30 years if she didn't help them. Amanda states: “I was terrified... they had to be pressuring me for a reason. They had to be telling the truth.... I didn't trust my own mind anymore. I believed the police. I could no longer distinguish what was real from what wasn't.” Officer Ruffo took both of her hands in his and said: “I really want to help you. I want to save you, but you need to tell me who the murderer is. You need to tell me. You know who the murderer is. You know who killed Meredith.”

1.11 As a result of her fatigue and exhaustion, the cumulative verbal hammering, threats, physical abuse (the slapping may be considered a threat of further physical punishment), suggestion, and implication of relief if she became compliant, apparently Amanda “in that instant … snapped”. Amanda states that she “truly thought [she] remembered somebody...[she] didn't think [she] was making it up....The image that came to [her] was Patrick's face.” She said, “Patrick -it's Patrick.” At 1:45 am the police had Amanda sign a document written in Italian that, with no sensible detail, claimed that she had responded to Patrick's text message with her own, which the police had changed to “we'll see each other right away.” The false statement goes on to claim that she and Patrick met at Piazza Grimana and went to the cottage together, and further states: “I do not remember if Meredith was there or came shortly afterward. I have a hard time remembering those moments but Patrick had sex with Meredith, with whom he was infatuated, but I cannot remember clearly whether he threatened Meredith first. I remember confusedly that he killed her.”

1.12 Some time after this, Prosecutor Giulio Mignini came into the room. Amanda states that she asked, “Do I need a lawyer,” and the response from a police officer or perhaps Mignini was, “No, no, that will only make it worse. It will make it seem like you don't want to help us.” Mignini then interrogated her, essentially by having her agree to his suggestions. The result was a “voluntary report” or “spontaneous statement” prepared by the police in Italian, signed by Amanda at 5:45 am.

1.13 Amanda became very emotional and upset during the first interrogation; she states that she cried for a long time before the 1:45 am signing. Police Director SCO Edgardo Giobbi, a serious crime specialist from Rome who had come to Perugia to assist the local police, reported in his court testimony that “ Amanda was one that had a little bit more than manifestations of behavior, I do not even know which terms to use, I could call them, the events of the two behaviors were completely different, very simple, Amanda was more emotional, had a lot of reactions stronger, I remember very well the great weeping, big shout, scream big emotional.” {Google translation} Giobbi stated in his testimony that it was his plan to bring Amanda and Raffaele to the police station that evening for simultaneous interrogations. Such simultaneous interrogations are used by police to defeat mutually supporting alibis of co-conspirators. The interrogation is also unusual in being scheduled at night, by a large number of police, and after so many hours of day-time interviewing of the two subjects. No recordings or detailed notes are known to have been taken, although such recordings and minutes are typical for interviews of witnesses. No lawyer was present for either subject of the interrogation.

1.14 Amanda documented in her Memoriale 1, written on November 6 before she was taken to prison, that “In regards to this "confession" that I made last night, I want to make clear that I'm very doubtful of the verity of my statements because they were made under the pressures of stress, shock and extreme exhaustion. Not only was I told I would be arrested and put in jail for 30 years, but I was also hit in the head when I didn't remember a fact correctly.” Amanda also stated in her 2009 testimony that she had been hit twice during the interrogation. In is uncertain whether any investigation of her allegations of being hit was initiated. In response to her statements alleging that she had been hit during her 2009 trial, criminal charges against Amanda for calunnia against the police were initiated by the prosecutors and a civil suit intiated against her by the twelve police officers who participated in her interrogation. Her parents, who had stated in an interview in June, 2008 with the Sunday Times that Amanda had been physically and verbally abused by police during the November 5/6 interrogation, were sued by police for defamation in 2009; the penalty for defamation is 6 months to 3 years in prison and a fine.

2 The Law:

2.1 The use in criminal proceedings of statements obtained as a result of a violation of Article 3 – irrespective of the classification of the treatment as torture, inhuman or degrading treatment – renders the proceedings as a whole automatically unfair, in breach of Article 6 . This also holds true for the use of real evidence obtained as a direct result of acts of torture. The admission of such evidence obtained as a result of an act classified as inhuman treatment in breach of Article 3, but falling short of torture, will only breach Article 6, however, if it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings against the defendant, that is, had an impact on his or her conviction or sentence.

2.2 As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation. The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct.

2.3 The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3.

2.4 Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3.

2.5 The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. Treatment has been held to be “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or psychological resistance, or when it was such as to drive the victim to act against his will or conscience.

2.6 Allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.

3 Commentary:

3.1 There are two aspects to alleged Article 3 violations: substantive, in which torture or inhuman and degrading treatment are alleged, and procedural, in which it is alleged that the State has failed to effectively investigate an allegation of torture or of inhuman and degrading treatment.

3.2 Considering the facts of the case, it is arguable but not certain that ECHR would find a substantive violation, that inhuman or degrading treatment occurred during the interrogation, especially of Amanda Knox. The ECHR would seek evidence or inferences to establish beyond a reasonable doubt that such treatment occurred. Evidence includes Amanda Knox's written Memoriale 1, her informing her parents and her lawyers of the treatment, her trial testimony, the very timing of the interrogation at night, the statements in her book Waiting to be Heard, the failure of the authorities to record it either electronically or in writing, and the testimony of Giobbi that he heard Amanda screaming and crying. Amanda's two statements from Novemeber 5/6, in Italian, lacking in detail, naming as a murderer and rapist someone she had not previously accused, and oddly phrased for the words of an American, may themselves be evidence of degrading treatment. Similarly, Raffaele's statement may be considered evidence of degrading treatment. The ECHR statement in paragraph 2.5 makes this more likely for both. While one cannot be certain that all this evidence would meet the ECHR requirements for proof, the ECHR statement in paragraph 2.5 (from Lyapin) seems to provide a clear precedent.

3.3 Evaluating the circumstances relating to the procedural aspect, it does not appear as though there has been any attempt at an effective investigation by the Italian authorities. Indeed, by bringing a criminal charge against Amanda Knox, accusing her of calunnia against the police, it appears that the authorities are attempting to inhibit an investigation and retaliate against her for bringing forth her allegations. The civil suits, launched by the police officers who participated in the interrogation, against Amanda and also against her parents, likewise appear to be attempts to inhibit an investigation and to retaliate against her. It is likely that ECHR will find a procedural violation by Italy of Convention Article 3.

4 Cases: El Haski v. Belgium 649/08 § 85; Gäfgen v. Germany [GC] 22978/05 § 89, 166-167, 178; ,Jalloh v. Germany [GC] 54810/00 § 105; Labita v. Italy 26772/95 § 119-121 (and citations therein); Lyapin v. Russia 46956/09 § 114

5 Sources: Details and quotes from: Honor Bound; Waiting to be Heard; Amanda Knox, Court Testimony, 2009; http://www.cbsnews.com/news/lawsuits-fl ... der-trial/
Expert witness testimony must be the product of reliable principles and methods. {Paraphrase of Fed. Rules of Evidence 702c}
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Feb 16, 2015 6:51 pm

ECHR Judgments Relevant to the Knox-Sollecito Case
Part 2. The Meredith Kercher Murder Case


Amanda Knox and Raffaele Sollecito are both defendants in the case of the murder and sexual assault of Meredith Kercher. The actual sole murderer and rapist, Rudy Guede, was convicted in an Italian fast-track trial.

Amanda Knox and Raffaele Sollecito were provisionally convicted in a first-level trial (Giancarlo Massei, presiding judge) and then provisionally acquitted in a second-level trial (Claudio Hellmann, presiding judge). However, verdicts in Italy are only final when approved by the Italian Supreme Court of Cassation (Corte Suprema di Cassazione, CSC). The CSC quashed the acquittal of the Hellmann court and ordered a new second-level trial, giving specific suggestions that a guilty verdict was indicated. The new second-level trial (Alessandro Nencini, presiding judge) resulted in a provisional conviction. The Nencini court verdict has been appealed by both defendants and will be reviewed by the CSC in a hearing scheduled to begin March 25, 2015.

If the result of that hearing is an acquittal, then an application to the European Court of Human Rights (ECHR) would not be appropriate. If the result is the quashing of the Nencini verdict and the ordering of a third second-level trial, an application to the ECHR except for length of trial may be problematic, since applications are inadmissible unless domestic remedies are exhausted. However, if there is a final conviction, an application to the ECHR by either Amanda or Raffaele or both would be in admissible if filed within the requisite time limit.

This analysis of the European Court of Human Rights judgments relevant to the Knox-Sollecito case will focus on: 1) the facts of instances of alleged violations by Italy of specific Articles of the European Convention of Human Rights (the Convention), 2) a description of the Convention Law, and 3) on a list of supporting cases (exemplar judgments). The brief descriptions of the Convention Law in each subsection is based upon information in the Guide on Article 6 :Right to a Fair Trial (Criminal Limb), (c) Council of Europe/Court of Human Rights, 2014; available at http://www.echr.coe.int, and on the cases listed (available on the ECHR HUDOC database).

The text of Article 6 of the European Convention of Human Rights:

Article 6 – Right to a fair hearing

1. In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

The analysis for the Knox-Sollecito case, Part 2; all violations listed are allegations based on the opinion of the author:

1 Violation of Article 6.2 – Right to Presumption of Innocence; First Instance

1.1 The Facts: The Chief of Police of Perugia declared “Case Closed” on Nov. 6, 2007 in a press conference held after the arrest of Amanda Knox, Raffaele Sollecito, and Patrick Lumumba, and clearly indicated that these individuals were definitely guilty of the murder of Meredith Kercher. Giuliano Amato, the Italian interior minister, said: "It was a horrible death, an awful occurrence in which people that were in this young woman's home tried to bring her into relations that she didn't want to have, and she was killed."

1.2 The Law: The presumption of innocence may be infringed not only by a judge or court but also by other public authorities. Article 6 § 2 prohibits statements by public officials about pending criminal investigations which encourage the public to believe the suspect guilty and prejudge the assessment of the facts by the competent judicial authority. The Court has emphasised the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of an offence.

1.3 Cases: Allenet Ribemont v. France 15175/89 § 36; Daktaras v. Lithuania 42095/98 § 42; Ismoilov and others v. Russia 2947/06 § 161; Butkevicius v. Lithuania 48297/99 § 53

2 Violation of Article 6.2 – Right to Presumption of Innocence; Second Instance

2.1 The Facts: The authorities released, or allowed the release, to the media of false defamatory and incriminating information fabricated by the authorities and private information taken without permission from the personal writings and conversations of Knox and Sollecito, respectively.

2.2 The Law: A virulent press campaign can...adversely affect the fairness of a trial by influencing public opinion and, consequently, jurors [or lay judges] called upon to decide the guilt of an accused.

2.3 Cases: Kuzmin v. Russia 58939/00 § 62; Khuzhin v. Russia 13470/02 § 93-96; Dovzhenko v. Ukraine 36650/03 § 47-52; Shuvalov v. Estonia 39820/08 § 82

3 Violation of Article 6.2 – Right to Presumption of Innocence; Third Instance

3.1 The Facts: Amanda Knox and Raffaele Sollecito were explicitly designated as guilty of Meredith Kercher's murder in Rudy Guede's Fast-Track trial motivation report (Micheli report). The Micheli report states as facts, rather than as allegations to be proven, the following:

3.1.1 That a trace of Kercher's biological material [DNA] was found on a kitchen knife taken from Sollecito's apartment, with Knox's DNA on the handle (p. 45);

3.1.2 That a mixture of Kercher's and Sollecito's DNA was found on the on the hooks of the bra clasp recovered in the murder room of the cottage on 18 December 2007 (p. 45);

3.1.3 That the statements alleging evidence regarding Knox and Sollecito and of the prosecution theory of the crime from the preliminary hearing of Knox and Sollecito were incorporated into the Fast-Track motivation without indication that those statements were unproven, (p. 54 and following)

4 Violation of Article 6.2 – Right to Presumption of Innocence; Fourth Instance

4.1 The Facts: In Rudi Guede's appeal trial judgment, the Borsini-Bellardi motivation, Amanda Knox and Raffaele Sollecito are stated to be guilty of the murder of Meredith Kercher. Amanda Knox is stated to have allowed Guede into the flat and to have committed a cover-up of the presence of Sollecito and herself in the crime, including by the staging of a break-in.

4.2 The Law: The presumption of innocence will be violated if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty. A premature expression of such an opinion by the tribunal itself will inevitably fall foul of this presumption.

4.3 Cases: Minelli v. Switzerland 8660/79 § 37; Nerattini v. Greece 43529/07 § 23; Didu v. Romania 34814/04 § 41

5 Violation of Article 6.2 – Right to Presumption of Innocence; Fifth Instance

5.1 The Facts: DNA evidence allegedly implicating the defendants could more likely be explained as contamination. The reliability of the DNA test procedures used was not established by the prosecution, including the validity of tests and their freedom from contamination. The responsibility for establishing the presence and source of contamination, was however, by fiat of the Corte Suprema di Cassazione, assigned to the defendants.

5.2 The Law: The presumption of innocence will be infringed where the burden of proof is shifted from the prosecution to the defence. In requiring the defendant to provide an explanation although they had not been able to establish a convincing prima facie case against [the defendant], the [domestic] courts shifted the burden of proof from the prosecution to the defence. *

5.3 Telfner v. Austria 33501/96 § 15

6 Violation of Article 6.3b – Right to Adequate Facilities for Defense; First Instance

6.1 The Facts: Following their arrest, Amanda Knox and Raffaele Sollecito were each held incommunicado and were each not provided with a lawyer until November 8, 2007 at the Hearing for the Validation of the Arrest before Judge Matteini. Therefore, their lawyers did not have adequate time to determine the facts of the case or provide adequate counsel.

6.2 The Law: Article 6 § 3(b) of the Convention concerns two elements of a proper defence, namely the question of facilities and that of time. This provision implies that the substantive defence activity on the accused’s behalf may comprise everything which is “necessary” to prepare the trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the ability to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings. When assessing whether the accused had adequate time for the preparation of his defence, particular regard has to be had to the nature of the proceedings, as well as the complexity of the case and the stage of the proceedings.

6.3 Cases: Gregačević v. Croatia 58331/09 § 51

7 Violation of Article 6.3b – Right to Adequate Facilities for Defense; Second Instance; with Violation of Article 6.1 – Right to Equality of Arms

7.1 The Facts: In each of the trial phases, despite requests from the defense, a large number of items of evidence, including forensic evidence, in the possession of the police were never admitted into the court and not disclosed to the defense. These items include, but are not limited to:

7.1.1 Electronic data files from the DNA profiling (requested by Hellmann court, but not delivered to court or defense)

7.1.2 Full results of DNA negative and positve control samples

7.1.3 Full results of the rape kit DNA profiling, including any presence of sperm or any indication of anal rape

7.1.4 Full explanation of the methodology used to conduct the DNA sampling, quantification, and profiling

7.1.5 Full disclosure of all samples of DNA tested; there was a suppression of data revealed by anomalies in the number of samples

7.1.6 Full disclosure of the DNA results of the human blood stains in the downstairs flat

7.1.7 Testing of a putative semen stain to identify it and to conduct DNA profiling

7.2 The Law: The “facilities” which everyone charged with a criminal offence should enjoy include the opportunity to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings. Failure to disclose to the defence material evidence containing items that could enable the accused to exonerate himself or have his sentence reduced may constitute a refusal of the facilities necessary for the preparation of the defence, and therefore a violation of the right guaranteed in Article 6 § 3(b) of the Convention. The accused may, however, be expected to give specific reasons for his request and the domestic courts are entitled to examine the validity of these reasons.

7.2.1 It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition, Article 6 § 1 requires that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused.

7.2.2 Having regard to the fact that, in spite of repeated requests, essential pieces of evidence were not adequately adduced and discussed at the trial in the defendant’s presence, the proceedings ... taken as a whole, did not satisfy the requirements of a fair trial. *

7.2.3 It [was not reasonably] explained why the defendants' requests to have the [evidence] produced before the court were refused. While it is true that the right to disclosure of relevant evidence is not absolute, the Court must scrutinise the decision-making procedure to ensure that, as far as possible, the procedure complied with the requirements to provide adversarial proceedings, equality of arms and incorporated adequate safeguards to protect the interest of the accused.*

7.2.4 The defendant was neither informed of the reasons for non-disclosure nor of the nature of the undisclosed materials nor, indeed, of whether the [suppressed evidence] did include any undisclosed material evidence. The Court considers that the procedure followed by the judicial authorities in the present case failed to adequately counterbalance the difficulties caused to the defence by its restricted access to the [suppressed evidence]. The defence were not informed in an adequate manner of the [domestic court’s] position on why it had been strictly necessary to restrict their rights and they had no possibility of presenting their counterarguments to any such considerations. The Court observes that the [domestic court] initially did authorise the applicant’s access to the [suppressed evidence] – implying that it found no reasons to restrict such access and considered it to be of some importance for the defence – but failed to take adequate measures to ensure compliance by the investigating authorities with its orders. Nor was this issue of non-compliance subsequently addressed in the judgements of the domestic courts. In these circumstances, the Court does not consider that the procedure employed to determine the issue of disclosure of evidence complied with the requirements to provide adversarial proceedings and equality of arms or incorporated adequate safeguards to protect the interests of the accused. It follows that there has been a violation of Article 6 of the Convention in this respect.*

7.2.5 Non-disclosure of evidence to the defence may breach equality of arms (as well as the right to an adversarial hearing).

7.3 Cases: Natunen v. Finland 21022/04 § 43; Georgios Papageorgiou v. Greece 59506/00 (as 6.3d) § 36-39; Laska & Lika v. Albania 12315/04 § 70; Leas v. Estonia 59577/08 § 76-89; Kuopila v. Finland 27752/95 § 38

8 Violation of Article 6.3c – Right to Defend Oneself Through Legal Assistance

8.1 The Facts: Amanda Knox and Raffaele Sollicito were separately coercively interrogated by police without the presence of legal counsel during the night of November 5/6, 2007.

8.1.1 Raffaele, as a result of pressure from the police and a confusion over dates, made a statement interpreted by police as indicating that Amanda had left his apartment the night of November 1.

8.1.2 Amanda, as a result of exhaustion, pressure from the police, police misrepresentation of a message on her cell phone, and misleading information that Raffaele was no longer vouching for her presence at his apartment at the relevant time, and the suggestion by a police interpreter self-described as a mediator that Amanda could be suffering from traumatic amnesia, made false statements that she had let Patrick Lumumba into the cottage and heard him killing Meredith Kercher.

8.1.3 Her false statement was interpreted by the Nencini court as indicating she had participated in the murder, although the Corte Suprema di Cassazione had initially stated that her statements made during interrogation without a lawyer could not be used as evidence against her in the murder trial.

8.2 The Law: Any person subject to a criminal charge must be protected by Article 6 § 3(c) at every stage of the proceedings. This protection may thus become relevant even before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with the provisions of Article 6.

8.2.1 The manner in which Article 6 § 3(c) is to be applied in the pre-trial phase, i.e. during the preliminary investigation, depends on the special features of the proceedings involved and on the circumstances of the case. Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer from the initial stages of police questioning.

8.2.2 This right may, however, be subject to restriction for good cause. The question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such a restriction must not unduly prejudice the rights of the accused under Article 6.

8.3 Cases: Salduz v. Turkey 36399/02[GC] § 50-55; Ibrahim and others v. the United Kingdom 50541/08 § 191-196; Seventy-five other cases reference Salduz

9 Violation of Article 6.3d – Right to Examine Witnesses

9.1 The Facts: Statements by Rudy Guede, the actual murderer of Meredith Kercher, were used directly or indirectly against Amanda Knox and Raffaele Sollecito, in particular in the Motivation Reports of the CSC quashing the Hellmann court acquittal and of the Nencini court provisionally convicting them, with there having been no cross-examination at any time of Guede by the defense of either defendant.

9.2 The Law: Article 6 § 3(d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings.

9.2.1 In particular, the use of statements from a co-defendant legally exercising the right not to testify and be cross-examined may not be used to convict any of the other defendants.

9.2.2 Thus, when a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6.

9.3 Cases: Hümmer v. Germany 26171/07 § 38; Lucà v. Italy 33354/96 § 39-40; Solakov v. the Former Yugoslav Republic of Macedonia 47023/99 § 57; Al-Khawaja & Tahery v. the United Kingdom 26766/05 & 22228/06[GC] § 119

10 Violation of Article 6.3e – Right to the Assistance of a Fair Interpreter

10.1 The Facts: Amanda Knox was not provided with a fair interpreter during her interrogation on Nov. 5/6, 2007. At the initial part of the questioning, there was no interpreter. After some time, a police interpreter was called in; this person admitted to having acted as a “mediator” who told Amanda Knox about the interpreter's personal experience with traumatic amnesia and suggested that Amanda could be experiencing a similar episode. Thus the police interpreter acted as part of the police team rather than as a fair interpreter.

10.2 The Law: A fair interpreter must be provided from the first interrogation to someone who is not sufficiently fluent in the language used in the interrogation, because of the need to a form an idea as accurately as possible of the alleged offences, and to asure that the subject of the interrogation is in a position to appreciate fully the consequences of any waiver of the right to keep silent and the right to legal assistance. The denial of a fair interpreter from the very first interrogation is a violation of Convention Article 6.3e with Article 6.1.*

10.2.1 Article 6 § 3(e) applies not only to oral statements made at the trial hearing but also to documentary material and the pre-trial proceedings. However, only documents essential to the defendant understanding the case need be translated. *

10.2.2 The services of the interpreter must provide the accused with effective assistance in conducting his defence and the interpreter’s conduct must not be of such a nature as to impinge on the fairness of the proceedings. In sum, the interpretation assistance provided should be such as to enable the defendant to have knowledge of the case against him and to defend himself, notably by being able to put before the court his or her version of the events.

10.3 Cases: Baytar v. Turkey 45440/04 § 53-59; Kamasinski v. Austria 9783/82 § 74; Hermi v. Italy [GC] 18114/02 § 70-72

11 Violation of Article 6.1 – Right to a Reasoned Decision

11.1 The Facts: There were numerous deviations from acceptable legal reasoning in the motivation reports in the case. Indeed, there was no reliable evidence of guilt presented. In particular, DNA evidence allegedly implicating the defendants could most likely be explained as due to contamination; the possibility of contamination was not adequately discussed in the Nencini court motivation report. In fact, extraordinary claims contrary to accepted scientific principles were used to evade the acknowledgment of DNA contamination of the bra clasps.

11.1.1 The “staging” of a break-in of the cottage through a window was accepted as fact based on an absurd rationale, without adequate or reasonable consideration of the defense argument that the break-in was real.

11.1.2 There are numerous examples of conclusions adopted solely on the basis of the statement of the prosecution or the invention of the judge(s) that are found in the motivation report; for example, the alleged murder weapon, a kitchen knife from Raffaele Sollecito's apartment, is alleged to have been carried to the cottage shared by the victim and Amanda Knox, with no evidence whatsoever that such occurred.

11.1.3 Furthermore, the conclusions and reasonings of the Nencini report are totally inconsistent, with the possible exception of the calunnia charge against Amanda Knox, with the Hellmann court motivation report, which acquitted the defendants of all other charges. Indeed, there were differing evaluations of the same physical evidence.

11.1.4 The Nencini court motivation report did not adequately explain why it rejected defense requests to admit evidence.

11.2 The Law: According to established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. While courts are not obliged to give a detailed answer to every argument raised, it must be clear from the decision that the essential issues of the case have been addressed National courts should indicate with sufficient clarity the grounds on which they base their decision so as to allow a litigant usefully to exercise any available right of appeal.

11.2.1 No convincing evidence brought forth at trial is a violation of Article 6.1.*

11.2.2 Manifestly deficient reasoning of the domestic court failed to fulfill the requirements of a fair trial; violation of Article 6.1.*

11.2.3 The Court, however, is not persuaded that the domestic courts made reliable factual findings because their conclusions appear inconsistent, fraught with contradiction and irreconcilable with the actual events, and in particular with the judgment of [another court hearing the case]. Whilst acknowledging the domestic judicial authorities' prerogative to assess the evidence and decide what is relevant and admissible, the Court reiterates that Article 6 § 1 places the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties. The Court is perplexed by this [unreasonable] conclusion and cannot see how it could be reconciled with the abundant evidence to the contrary, [including a previous contrary decision of a domestic court]. The unreasonableness of this conclusion is so striking and palpable on the face of it that the decisions of the domestic courts [in the final decision] can be regarded as grossly arbitrary, and by reaching that conclusion in the circumstances of the case the domestic courts in fact set an extreme and unattainable standard of [defense, that the defendants] in any event, [could not] have had even the slightest prospect of success. The Court concludes that the [defendants did not have a] fair hearing.*

11.2.4 The Court noted that in the present case the validity and reliability of the same item of evidence had been assessed differently by the domestic courts. This contradictory assessment had led to different legal conclusions as to the establishment of the facts, [and the crime]. Since this was the decisive piece of evidence for establishing the facts, an issue arose in terms of the fairness of the proceedings. [The domestic court] had not provided sufficient reasons for choosing to adopt a contrary position concerning the validity of the same item of evidence. Bearing in mind the decisive role of the evidence in question, a specific and express reply to that argument had been required from the courts. In the absence of such a reply, it was impossible to ascertain whether the courts had simply neglected to deal with the argument or if they had intended to dismiss it and, if so, for what reasons.*

11.2.5 The Court does note the importance for the [domestic court] to give detailed and convincing reasons for the refusal to take evidence proposed by a [defendant], especially when that evidence has considerable importance for the outcome of the proceedings.*

11.3 Cases: Boldea v. Romania 19997/02 § 30; Berhani v. Albania 847/05 § 55; Tatisvilli v. Russia 1509/02 § 63; Khamidov v. Russia 72118/01 § 137 & 173-175; S.C. IMH Suceava v. Romania 24935/04 § 33 & 39-41; Mala v. Ukraine 4436/07 § 53

12 Violation of Article 6.1 – Right to a Fair Hearing by an Impartial Tribunal with the Right to a Reasoned Decision

12.1 The Facts: Following the acquittal of both defendants on all charges except simple calunnia (for Amanda Knox only) by the Hellmann court, the CSC annulled the acquittal on unreasonable grounds, and in practical effect directed a lower court to find the defendants guilty on all charges, leaving primarily only the motivation of the crime to be determined by the lower court. Clear and sufficient reasons were not given for quashing the acquittal verdict. The CSC contributed its own finding of fact for some aspects, although it only reviewed documents and had not heard the case or examined evidence.

12.1.1 The Nencini court in its verdict and motivation report largely conformed to the CSC motivation report directions. That is, the Nencini court provisionally convicted the defendants on all charges, including as directed by the CSC, convicting Knox of aggravated calunnia. However, neither the CSC in its quashing of the Hellmann court acquittal, nor the Nencini court in convicting, reheard the witnesses or reviewed new inculpatory evidence.

12.1.2 The only new forensic DNA evidence reviewed, which the CSC had termed decisive, but which previously been considered unsuitable for testing, when evaluated by new technical means, was not at all inculpatory. Furthermore, the opinion of experts on DNA forensics, who had been appointed by the Hellmann court, was arbitrarily and unreasonably disregarded without adequate rationale. The court-appointed DNA experts had found the alleged DNA evidence against Knox and Sollecito to be unreliable since the samples were not obtained in accordance with international standards for the prevention of contamination and the testing had not been conducted in accordance with validated methods. The experts stated that the police forensic laboratory in which the testing had been done was not equipped to carry out to prepare or test the low-count number (LCN) DNA samples allegedly implicating Knox and Sollecito.

12.2 The Law: It therefore appears that when they convicted the [defendant] neither the Court of Appeal nor the Supreme Court relied on any new evidence. Instead, they based their decisions on the evidence given by the [defendant] and the witnesses before the prosecutor and the [first-level] Court. However, the latter, after having heard the witnesses in person, had held that none of the evidence was conclusive proof as to the [defendant’s] guilt, and acquitted him. Even if the appellate courts could, in principle, have given their own interpretation of the evidence adduced before them, in the instant case the [defendant] was found guilty on the basis of witness testimony that had been found insufficient by the [first-level] Court and had justified his acquittal.*

12.2.1 The Court reiterates that the manner of application of Article 6 to proceedings before courts of appeal depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein. However, where an appellate court is called upon to examine a case as to the facts and the law and to make a full assessment of the question of the [defendant's] guilt or innocence, it cannot, as a matter of fair trial, properly determine those issues without a direct assessment of the evidence given in person by an accused who claims that he has not committed the act alleged to constitute a criminal offence.

12.2.2 The domestic courts have a duty to provide reasons for their decisions; the extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Failure to give sufficient reasons [or arbitrary reasoning] raise issues of violations of Article 6. The domestic courts chose simply to remain silent with regard to certain fundamental issues, such as the fact that [the defendant] had an alibi for the presumed time of the murder. The Court could not find any [reasonable] explanation for such omissions in the domestic courts' decisions; this is striking, given that two courts acquitted the applicant in the first round of proceedings and since, in the absence of any new evidence mentioned in the courts' judgments, they convicted the [defendant] in the second round of proceedings, disregarding circumstances which had earlier led to his acquittal. Therefore, the domestic courts did not give sufficient reasons for their judgments, and a violation of Convention Article 6.1.*

12.2.3 The Court does note the importance for the [domestic court] to give detailed and convincing reasons for the refusal to take evidence proposed by a [defendant], especially when that evidence has considerable importance for the outcome of the proceedings.*

12.2.4 The question of whether or not the defence enjoyed “equality of arms” with the prosecution and whether the trial was “adversarial” cannot be addressed solely in quantitative terms. In the present case it was very difficult for the defence to effectively challenge the expert evidence submitted to the court by the prosecution. The Court stresses that the case against the applicant was built upon that expert evidence. In those circumstances, the way in which expert evidence was handled made the applicant’s trial unfair.*

12.3 Cases: Hanu v. Romania 10890/04 § 39-40; Cipleu v. Romania 36470/08 § 30-31; Ventrenko v. Moldova 36552/02 § 52-53 & 58; Mala v. Ukraine 4436/07 § 53; Matytsina v. Russia 58428/10 § 207

* Paraphrased from the ECHR case judgment text.


Note: There are additional violations of the Convention that appear in this case, specifically, Article 3 (Prohibition against Torture and Inhuman and Degrading Treatment) and Article 8 (Right to Privacy). The Article 3 issues will be discussed separately. The Article 8 issues are important but do not necessarily affect the fairness of the trials, and may be summarized separately.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Feb 16, 2015 6:59 pm

Here is an outline of case law that applies to Amanda's application to the ECHR for her calunnia conviction.
(The listing may not be complete, but I believe it covers the major points.)

Some ECHR Judgments Relevant to the Knox-Sollecito Case

1. IBRAHIM AND OTHERS v. THE UNITED KINGDOM 50541/08 50571/08 50573/08... 16/12/2014
1.1. Provides a 5-point outline for determining if an interrogation without a lawyer affects the fairness of a trial.
1.1.1. The general legislative framework applicable and any safeguards it contains;
1.1.2. The quality of the evidence, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy; in this respect, improper conduct, notably coercion or ill-treatment, during interrogation and vulnerability of suspects are relevant factors;
1.1.3. Whether the statement was promptly retracted and the admissions made in it consistently denied, particularly once legal advice had been obtained;
1.1.4. The procedural safeguards applied during the criminal proceedings, and in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use;
1.1.5. The strength of the other evidence in the case.

2. SALDUZ v. TURKEY 36391/02 27/11/2008
2.1. The Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6.
2.2. As of 27 Dec 2014, there are 78 cases that cite Salduz v Turkey in the HUDOC database of ECHR, including Ibrahim et al. Of these cases, 66 involved issues of Article 6.1 (right to fair trial) with Article 6.3c (right to legal counsel).

3. PARENIUC v. THE REPUBLIC OF MOLDOVA 17953/08 01/07/2014
3.1. This case is one of 42 ECHR cases alleging police entrapment as of 27 Dec 2014. The Court has found a violation of Article 6.1 where the evidence shows that the applicant had no history of committing the crime before being induced to do so by police inducement or pressure to accept some benefit, such as a bribe.
3.2. From Para. 39 of Pareniuc: This [initial refusal to accept a bribe], in the Court’s opinion, clearly demonstrates that the applicant was subjected to blatant prompting and incitement to engage in the criminal activity of which she was convicted, in the absence of any indication that the offence would have been committed without such intervention.
3.3. The relevance to Amanda Knox's calunnia case is that she never made any statement or accusation against Patrick Lumumba before her police interrogation Nov. 5/6, 2007, and clearly made an accusation against Lumumba then solely because of police pressure. She began to retract the accusation on Nov. 6, 2007, after the interrogation, and completed the retraction after being allowed access to counsel.

4. SHABELNIK v. UKRAINE 16404/03 9/02/2009
4.1. No pressure to confess should be placed on unrepresented persons even if they do not have the procedural status of suspect during the impugned questioning, and are formally treated as witnesses at that stage.

5. DAYANAN v. TURKEY 7377/03 13/10/2009
5.1. In relation to the absence of legal assistance in police custody, the Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial.
5.2. The Court is of the view that the fairness of criminal proceedings under Article 6 of the Convention requires that, as a rule, a suspect should be granted access to legal assistance from the moment he is taken into police custody or pre-trial detention.
5.3. In accordance with the generally recognised international norms, which the Court accepts and which form the framework for its case-law, an accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned. Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.
5.4. Therefore, in accordance with items 1 through 3 immediately above, Amanda Knox (and Raffaele Sollecito) should have been provided with legal counsel not only during the Nov. 5/6, 2007 interrogation but also immediately after being arrested and jailed on Nov. 6. Furthermore, use of the statements written or signed by Amanda Knox during interrogation or after interrogation but before she had legal counsel to convict her of calunnia is a violation of Convention Articles 6.3c with 6.1.

6. PISHCHALNIKOV v. RUSSIA 7025/04 24/09/2009
6.1. The fact that the police proceeded to questioning the applicant in the absence of counsel occurred neither at the applicant’s suggestion nor at his request. There is no evidence that the confessions made by the applicant during those interrogations were initiated by him. Furthermore, the Court does not rule out that, in a situation when his request for assistance by counsel had been left without adequate response, the applicant who, as it follows from the case file, had had no previous encounters with the police, did not understand what was required to stop the interrogation. The Court is mindful that the applicant may not have had sufficient knowledge, experience, or even sufficient self-confidence to make the best choice without the advice and support of a lawyer. It is possible that he did not object to further questioning in the absence of legal assistance, seeing the confession (true or not) as the only way to end the interrogation. Given the lack of legal assistance the Court considers it also unlikely that the applicant could reasonably have appreciated the consequences of his proceeding to be questioned without the assistance of counsel in a criminal case concerning the investigation of a number of particularly grave criminal offences. The Court therefore does not find that the applicant’s statements, made without having had access to counsel, amounted to a valid waiver of his right.
6.2. Based on item 1 above, a person, such as Amanda Knox, without legal counsel and not knowledgeable about her rights may confess or make some statement (true or not) as the only way to end an interrogation. Use of such confession or statement is a violation of Convention Articles 6.3c and 6.1.

7. BAYTAR v. TURKEY 45440/04 14/10/2014
7.1. The case concerned the questioning in police custody, without the assistance of an interpreter, of an individual who did not have a sufficient command of the national language. The Court found in particular that, without the possibility of having the questions put to her interpreted and of forming as accurate an idea as possible of the alleged offences, Ms Baytar had not been put in a position to appreciate fully the consequences of waiving her right to keep silent and the right to legal assistance.
7.2. Amanda Knox was not provided with a fair interpreter during her interrogation. At the initial part of the questioning, there was no interpreter. After some time, a police interpreter was called in; this person admitted to having acted as a “mediator” who made suggestions to Amanda Knox and thus the police interpreter acted as part of the police team rather than as a fair interpreter. This is a violation of Article 6.3e (right to the assistance of an interpreter) taken together with Article 6.1 (right to a fair hearing) of the European Convention on Human Rights.

8. ETXEBARRIA CABALLERO v. SPAIN 74016/12 07/10/2014
8.1. While in incommunicado custody of the police and questioned, Ms Etxebarria Caballero alleged she was threatened and slapped, and subjected to other mistreatment including episodic asphyxiation and sexual assault. When brought before an investigating judge, she stated that she had been subjected to police mistreatment. Since no physical impairment was noted during a forensic medical examination, Ms Etxebarria Caballero's complaint was not investigated. Ms Etxebarria Caballero applied to the ECHR claiming violations of Article 3 (prohibition of inhuman and degrading treatment and the requirement that authorities conduct an effective investigation of alleged inhuman and degrading treatment). The ECHR judged that Spain had violated Convention Article 3 by failing to conduct an effective investigation, but that the very lack of evidence that Spain could not provide due to its failure to investigate prevented a finding beyond a reasonable doubt of such treatment.
8.2. Amanda Knox reported in writing turned over to the prosecutor that she had been threatened and slapped during the Nov. 5/6, 2007 interrogation, and she also reported that in court during her trial. In retaliation, she was sued for slander by police, and when her parents stated her complaint in public (echoing a published report), they were also sued for slander. Inferences may be drawn that these law suits are intended to discourage those who suffer mistreatment at the hands of the police from filing complaints. There has been no reported progress in an investigation into Amanda Knox's complaint. Thus, there are strong grounds for a judgment against Italy for a violation of Convention Article 3 (failure to effectively investigate allegations of inhuman and degrading treatment).
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Feb 16, 2015 10:10 pm

Here is some ECHR case-law of probable general interest.

This relates to Article 3 of the European Convention of Human Rights.
Article 3 prohibits torture and inhuman or degrading treatment.

In ECHR case-law, such as Gafgen v. Germany [GC] 22978/05 June 1, 2010 and more recently in Lyapin v. Russia 46956/09 July 24, 2014, the ECHR has found that:

The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. Treatment has been held to be “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or psychological resistance, or when it was such as to drive the victim to act against his will or conscience (see Gäfgen, cited above, § 89).

{Emphasis added}

Applying the concept in the judgment to the interrogations of Amanda Knox and Raffaele Sollecito on the night of November 5/6, 2007, there are the following parallels:

1. The treatment was premeditated (there was a contingent of police in the station, and according to the testimony of Director Giobbi of the SCO Police Unit, he had planned interrogations of both individuals to be held simultaneously.

2. The treatment apparently caused intense mental suffering in the individuals.

3. The treatment undoubtedly aroused in the victims feelings of fear, anguish, and inferiority that was capable of, and indeed succeeded, in breaking their psychological resistance, as evidenced by their confusion and the obviously false statements that the police induced both of them to sign.

A consequence of the ECHR finding that an individual has been subjected to degrading treatment is that any conviction resulting directly from information gained from the individual as a result of the degrading treatment is considered unfair, a violation of Convention Article 6. Thus, typically, the State that has committed the violation must redress it, by, for example, retrying the individual if he/she requests, but only using information and procedures in conformity with Article 6.

For Amanda, this means that, assuming the ECHR agrees that there was degrading treatment, the conviction for calunnia cannot stand.
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Re: ECHR: Convention Violations and Case-Law

Postby KayPea » Mon Feb 16, 2015 11:35 pm

Thanks!!
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Re: ECHR: Convention Violations and Case-Law

Postby Mafiabuster » Tue Feb 17, 2015 4:32 pm

It's not likely to pass. Are there any updates on what Amanda's legal team are considering in the way of blocking Italy's extradition request should it come to pass?

I notice that the guilter camp is ratcheting up the tension and has gone into full offense mode. Is there anything we can do to fight Amanda's corner?
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue Feb 17, 2015 7:02 pm

Mafiabuster wrote:It's not likely to pass. Are there any updates on what Amanda's legal team are considering in the way of blocking Italy's extradition request should it come to pass?

I notice that the guilter camp is ratcheting up the tension and has gone into full offense mode. Is there anything we can do to fight Amanda's corner?


I don't have any info on Amanda's legal strategies, I only know what's been made public.
All the ECHR information is based on Amanda's and Raffaele's books, her website, testimony (transcripts at what is now amandaknoxcase.com) and the ECHR database and website.
In terms of help for Amanda and Raffaele, we should encourage people to sign the petition at Change.org. Also, consider writing to the US Secretary of State and the Italian Ambassador/Italian Minister of Justice. Extradition would be a request (after a finalized conviction) from the Italian Minister of Justice to the Secretary of State; either one can block extradition.
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Re: ECHR: Convention Violations and Case-Law

Postby Mafiabuster » Wed Feb 18, 2015 5:33 pm

Numbers wrote:
Mafiabuster wrote:It's not likely to pass. Are there any updates on what Amanda's legal team are considering in the way of blocking Italy's extradition request should it come to pass?

I notice that the guilter camp is ratcheting up the tension and has gone into full offense mode. Is there anything we can do to fight Amanda's corner?


I don't have any info on Amanda's legal strategies, I only know what's been made public.
All the ECHR information is based on Amanda's and Raffaele's books, her website, testimony (transcripts at what is now amandaknoxcase.com) and the ECHR database and website.
In terms of help for Amanda and Raffaele, we should encourage people to sign the petition at Change.org. Also, consider writing to the US Secretary of State and the Italian Ambassador/Italian Minister of Justice. Extradition would be a request (after a finalized conviction) from the Italian Minister of Justice to the Secretary of State; either one can block extradition.


Thanks numbers. It's time to get writing letters then.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sun Feb 22, 2015 4:33 pm

The following judgment, relating to a demonstration, can also be applied to evidence from DNA profiling, where there is no domestic legislation regulating the manner of collecting and methods of testing and verifying the DNA specimens.

CASE OF VYERENTSOV v. UKRAINE 20372/11 11/04/2013

84. The Court notes that, according to its established case-law reflecting a principle related to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I, with further references).

85. The Court also reiterates that its duty, under Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Schenk v. Switzerland, 12 July 1988, § 45‑46, Series A no. 140, and Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998‑IV).

86. In that context, regard must also be had, in particular, to whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. The quality of the evidence is also taken into account, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (see Jalloh v. Germany [GC], no. 54810/00, § 96, ECHR 2006‑IX).

87. In the present case, the applicant’s arguments before the judicial authorities concerned both the factual circumstances and the legal issues of his case. In particular, in his appeal he advanced a number of legal arguments concerning the legislative regulation of the procedure for holding peaceful demonstrations, mainly complaining that he had been accused of holding one without permission, even though such permission was not required by law. In the Court’s opinion, these arguments were both important and pertinent. Furthermore, the legal framework for the exercise of freedom of assembly in Ukraine, which has been examined in detail in the present case, clearly demonstrates that the answers to his arguments were not obvious and self-evident. Nevertheless, the domestic courts, in particular the Court of Appeal, which examined the applicant’s written arguments on the issue, ignored them altogether, simply stating that they were refuted by the (unnamed) case-file materials and the body of evidence in the case. Neither did it answer to the applicant’s complaints about a violation of his procedural rights as guaranteed by Article 6 § 3 (b-d) of the Convention (see paragraphs 76, 79 and 82 above).

88. The Court has previously held, in the context of its examination of the fairness of criminal proceedings, that by ignoring a specific, pertinent and important point made by the accused, the domestic courts had fallen short of their obligations under Article 6 § 1 of the Convention (see Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 280, 21 April 2011). It observes a similar issue in the present case, where that requirement was not met.

89. Having regard to the above considerations, the Court concludes that there has been a violation of Article 6 § 1 of the Convention on account of the lack of adequate reasoning in the domestic courts’ decisions.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Feb 23, 2015 1:27 am

The relevance of this case is that it shows how ECHR directs a State, through the Committee of Ministers of the Council of Europe, to correct a flaw in its legal system, under Article 46 of the Convention. The case
involves a man convicted of murder and sentenced to 11 years in prision, but the violation is of Convention Article 5.1; the man had been held in pretrial remand for 1.5 months without a court order.

CASE OF CHANYEV v. UKRAINE 46193/13 09/10/2014


APPLICATION OF ARTICLE 46 OF THE CONVENTION
32.  Before examining the claims for just satisfaction submitted by the applicant under Article 41 of the Convention, and having regard to the circumstances of the case, the Court considers it necessary to determine what consequences may be drawn from Article 46 of the Convention for the respondent State. Article 46 of the Convention reads as follows:
“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.”
33.  The Court reiterates that Article 46 of the Convention, as interpreted in the light of Article 1, imposes on the respondent State a legal obligation to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to secure the right of the applicant which the Court has found to have been violated. Such measures must also be taken in respect of other persons in the applicant’s position, notably by solving the problems that have led to the Court’s findings (see, among many other authorities, Vyerentsov v. Ukraine, no. 20372/11, § 94, 11 April 2013). This obligation has been consistently emphasised by the Committee of Ministers in the supervision of the execution of the Court’s judgments. Whilst it is not for the Court to determine what measures of redress may be appropriate for a respondent State, the Court’s concern is to facilitate the rapid and effective suppression of a shortcoming found in the national system of protection of human rights (see Driza v. Albania, no. 33771/02, § 125, ECHR 2007‑XII (extracts)).
34.  In the present case the Court has found a violation of Article 5 of the Convention which can be said to be recurrent in the case-law concerning Ukraine. In the case of Kharchenko the Court noted that it regularly found “violations of Article 5 § 1 (c) of the Convention as to the periods of detention not covered by any court order, namely for the period between the end of the investigation and the beginning of the trial” (see Kharchenko, cited above, § 98). The issue was considered to stem from legislative lacunae (ibid.), and the respondent State was invited to take urgent action to bring its legislation and administrative practice into line with the Court’s conclusions in respect of Article 5 of the Convention (ibid, § 101). The new legislation, as the present case demonstrates, contains a similar shortcoming and the same violation has been found in respect of the new Code of Criminal Procedure.
35.  In view of the above, the Court considers that the most appropriate way to address the above violation is to amend the relevant legislation without delay, in order to ensure compliance of domestic criminal procedure with the requirements of Article 5.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Mar 09, 2015 7:14 am

ECHR on Manifestly ill-reasoned judgment in a criminal case.
Nechiporuk & Yonkalo v Ukraine 42310/04 21/04/2011

Paragraph 280: The Court has held...that by ignoring a specific, pertinent and important point of the applicant {who had been the defendant in a criminal trial}, the domestic courts fall short their obligations under Article 6.1 of the Convention. It observes a similar issue in the present case, where that requirement....was not met. {Thus, there is a violation of Article 6.1 of the Convention.}

The parts left out in the above quote point out that previously the ECHR had ruled that certain civil cases were manifestly ill-reasoned, for example Pronina v Ukraine 63566/00 paragraph 25, 18 Jul 2006.

There are IMO several instances of such "manifestly ill-reasoned judgment" in the Amanda Knox - Raffaele Sollecito case. One instance is in Amanda's conviction by the Hellmann court for calunnia. It appears that the report by the defense expert on memory was ignored in reaching this judgment. In the provisional conviction of both by Nencini for murder, the report by Conti and Vecchiotti impeaching the DNA sample collection and testing was apparently not addressed. ECHR states that the requirement for sound reasoning is even more stringent in the context of criminal than civil cases.

The finding by ECHR that a conviction was unfair does not by itself dismiss the conviction. It does place the respondent State (Italy, in this case) to allow redress, which could consist of a retrial under strict adherence to the Convention. This could mean, for example, exclusion of all the alleged DNA evidence against Amanda and Raffaele in such a retrial. Of course, if the March 25 hearing does not result in a final conviction, this case may not come before the ECHR. In particular, in case of an acquittal, it may only be considered under certain limited claims, such as excess length.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Mar 12, 2015 7:39 am

Titarenko v Ukraine 31720/02 20/09/2012

The Court (ECHR) considers that any conversation between a detained criminal suspect and the police must be treated as a formal contact and cannot be treated as "informal questioning". The Court notes that after being questioned by police without legal assistance [about crimes not related to the one he was suspected of] the applicant [defendant in domestic case] confessed to a very serious crime. [The applicant alleged that he had been subjected to mistreatment during the "informal questioning".]
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Wed Mar 18, 2015 6:11 am

A summary of the ECHR violations in this case.

The ECHR violations in this case include but are not limited to:
1) use of coercion to break the will of a defendant during interrogation (violation of Article 3);
2) denial of counsel during interrogation and police custody, and use of statements derived therefrom for conviction (violation of Article 6.3c with 6.1);
3) denial of facilities for proper defense, by not providing prosecution and police evidence requested by the defense (violation of Article 6.2b with 6.1);
4) use of statements from an unexamined witness to achieve conviction (violation of Article 6.3d with 6.1);
5) use of a court judgment from another trial, where the defendants were not represented, violating the presumption of innocence, in their conviction (violation of Article 6.2);
6) reversal of the burden of proof for evidence of the reliability of evidence, specifically contamination of DNA tests (violation of Article 6.2, presumption of innocence and 6.1, right to an adversarial trial);
7) conviction based on manifestly unreasoned grounds (violation of Article 6.1);
8) conviction following a virulent press campaign and published statements attributing guilt by public officials including police and the Minister of Interior (violation of Article 6.2).

ETA: For (1), the coercion includes use of inhuman and degrading treatment.
ETA2: Other violations of Article 6.2, presumption of innocence, are common in this case. For example, AK and RS are named as perpetrators and conspirators in the appeal motivation report of the fast-track trial of Guede; the break-in is assumed staged without valid evidence offered; a clean-up is assumed without valid evidence offered; foot prints are assumed to be AK's, in blood, and related to the murder, without valid evidence offered; and DNA alleged evidence of the bra clasp and knife blade are accepted as inculpatory without reason although they were thoroughly debunked by independent court experts.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Wed Apr 08, 2015 8:32 am

Because Amanda and Raffaele have been finally acquitted of the sexual assault and murder charges, there may or may not be further applications to the ECHR. It is possible to file an application on unreasonable length of trial, for example, but whether or not the other violations of the Convention would be considered may depend on how Italian authorities redress the violations by acknowledging them and paying adequate compensation.

The following excerpt is from the ECHR Practical Guide to Admissibility, pages 16 - 17.
See: www.echr.coe.int/Documents/Admissibility_guide_ENG.pdf

(e) Loss of victim status
31. It falls first to the national authorities to redress any alleged violation of the Convention. Hence, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings before the Court (Scordino v. Italy (no. 1) [GC], § 179). In this regard, the applicant must be able to justify his or her status as a victim throughout the proceedings (Burdov v. Russia, § 30; Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], § 80).
32. The issue as to whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his or her situation (ibid., § 82).
33. A decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (Scordino v. Italy (no. 1) [GC], § 180; Gäfgen v. Germany [GC], § 115; Nada v. Switzerland [GC], § 128). Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (Jensen and Rasmussen v. Denmark (dec.); Albayrak v. Turkey, § 32).
34. The applicant would remain a victim if the authorities have failed to acknowledge either expressly or in substance that there has been a violation of the applicant’s rights (ibid., § 33; Jensen v. Denmark (dec.)) even if the latter received some compensation (Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], § 88).
35. Moreover, the redress afforded must be appropriate and sufficient. This will depend on all the circumstances of the case, with particular regard to the nature of the Convention violation in issue (Gäfgen v. Germany [GC], § 116).
36. For example, a person may not claim to be a victim of a violation of his right to a fair trial under Article 6 of the Convention which, according to him, took place in the course of proceedings in which he was acquitted or which were discontinued (Oleksy v. Poland (dec.); Koç and Tambaş v. Turkey (dec.); Bouglame v. Belgium (dec.)), except for the complaint pertaining to the length of the proceedings in question (Osmanov and Husseinov v. Bulgaria (dec.)).
37. In some other cases whether an individual remains a victim may also depend on the amount of compensation awarded by the domestic courts and the effectiveness (including the promptness) of the remedy affording the award (Normann v. Denmark (dec.); Scordino v. Italy (no. 1) [GC], § 202; see also Jensen and Rasmussen v. Denmark (dec.)).
38. For other specific situations, see Arat v. Turkey, § 47 (Article 6); Constantinescu v. Romania, §§ 40-44 (Articles 6 and 10); Guisset v. France, §§ 66-70 (Article 6); Chevrol v. France, §§ 30 et seq. (Article 6); Moskovets v. Russia, § 50 (Article 5); Moon v. France, §§ 29 et seq. (Article 1 of Protocol No. 1); D.J. and A.-K.R. v. Romania (dec.), §§ 77 et seq. (Article 2 of Protocol No. 4); and Sergey Zolotukhin v. Russia [GC], § 115 (Article 4 of Protocol No. 7); Dalban v. Romania [GC], § 44 (Article 10); Güneş v. Turkey (dec.) (Article 10).
39. A case may be struck out of the list because the applicant ceases to have victim status/locus standi. Regarding resolution of the case at domestic level after the admissibility decision, see Ohlen v. Denmark (striking out); for an agreement transferring rights which were the subject of an application being examined by the Court, see Dimitrescu v. Romania, §§ 33-34.
40. The Court also examines whether the case should be struck out of its list on one or more of the grounds set forth in Article 37 of the Convention, in the light of events occurring subsequent to the lodging of the application, notwithstanding the fact that the applicant can still claim to be a “victim” (Pisano v. Italy (striking out) [GC], § 39), or even irrespective of whether or not he or she can continue to claim victim status. For developments occurring after a decision to relinquish jurisdiction in favour of the Grand Chamber, see El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], §§ 28-35; after the application had been declared admissible, see Shevanova v. Latvia (striking out) [GC], §§ 44 et seq.; and after the Chamber judgment, see Sisojeva and Others v. Latvia (striking out) [GC], § 96.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Apr 09, 2015 12:36 pm

Analysis of the potential ECHR status of the final acquittal of Amanda and Raffaele on the murder/rape charges:

I think that the best hope for redress, and one which Amanda and Raffaele should pursue, is redress including compensation from Italy. The motivation report for the acquittal may (one hopes) detail the abuses of procedure and violations of Italian law and the Convention. If it does not satisfactorily do so, it seems unlikely that ECHR would necessarily find violations of fair trial provisions for acquitted persons. As a general rule, apparently strictly enforced, ECHR will not find violations of Convention fair trial provisions for someone who has been finally acquitted, except for length of trial. The reasoning is that the finally acquitted person has largely lost his/her status as victim.

However, if there is an application for violation of the right to a reasonable length of trial, then the causes of this violation could be specified by the applicant(s) as the numerous violations of procedural law and Convention rights during the trials. My thought is that the applicant(s) should ask that the ECHR recognize these fair trial violations as continuing if not clearly enough addressed by the motivation report [a long shot in terms of ECHR recognition] or, if that is precluded, for the ECHR to point out that such irregularities or violations of the Convention occurred during the course of the trial and contributed to the excessive length of the trial, and should not have been allowed by the domestic judicial authorities. The ECHR should point out that the domestic judicial authorities have the responsibility of following the Convention and avoiding violations at each pre-trial and trial stage of the proceedings.

The above considerations should not affect Amanda's ECHR application claiming a violation of her Convention rights in the conviction for calunnia.

ETA: If one considers that the arrests and wrongfully convicting trials were all conducted on the basis of extreme bad faith, and if one accepts that there was never any legitimate reasonable suspicion to arrest Amanda and Raffaele (or Lumumba), then the entire proceedings should not have occurred, and certainly there should have been no arrest and no trial.
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Re: ECHR: Convention Violations and Case-Law

Postby LarryK » Sun Apr 12, 2015 2:26 am

Certainly Amanda's application to the ECHR concerning her calunnia conviction should proceed, to get that cleaned off her. Also her lawyers should follow correct procedures to allow for application there if Italy renders insufficient compensation to her. (The latter also applies to Raffaele.) I suppose the claims for compensation may include the excessive length of the judicial proceedings before final acquittal, so their lawyers need to be on top of what needs to be filed when, in order to pursue this.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Apr 13, 2015 11:02 pm

For those who doubt the eventual judgment of the ECHR in Amanda Knox's application against Italy for her calunnia conviction, there is an ECHR press release:

The Court clarifies the scope of the right to effective legal assistance
in criminal proceedings


In today’s Chamber judgment1 in the case of A.T. v. Luxembourg (application no. 30460/13) the European Court of Human Rights held, unanimously, that there had been:

a violation of Article 6 § 3 (c) (right to assistance of counsel) of the European Convention on Human Rights taken together with Article 6 § 1 (right to a fair trial) on account of a failure to provide legal assistance during a police interview,

no violation of Article 6 § 3 (c) taken together with Article 6 § 1 as regards the lack of access to the case file prior to the applicant’s first appearance before the investigating judge, and

a violation of Article 6 § 3 (c) taken together with Article 6 § 1 on account of the lack of communication between the applicant and his lawyer prior to his first appearance before the investigating judge.

The case concerned the failure to provide A.T. with effective legal assistance after he was arrested under a European Arrest Warrant, during both the police interview and his first appearance before the investigating judge.


Amanda Knox was not provided with a lawyer during her interrogation of Nov. 5/6, 2007 nor was she provided with a lawyer during the period when she was taken into custody, Nov. 6 through Nov. 8, 2007, until the time she was present at the hearing where her arrest was reviewed before a magistrate or judge. These are relevant parallels to the A. T. v Luxemburg case cited. The calunnia case conviction rests on statements made by Knox during her coercive interrogation and subsequent custody. The plain English meaning of the statements made while she was in custody was to cast doubt on the reliability of the statements attributed to her from the interrogation.
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Re: ECHR: Convention Violations and Case-Law

Postby florence » Tue Apr 14, 2015 2:44 pm

LarryK wrote:Certainly Amanda's application to the ECHR concerning her calunnia conviction should proceed, to get that cleaned off her. Also her lawyers should follow correct procedures to allow for application there if Italy renders insufficient compensation to her. (The latter also applies to Raffaele.) I suppose the claims for compensation may include the excessive length of the judicial proceedings before final acquittal, so their lawyers need to be on top of what needs to be filed when, in order to pursue this.


I read that Italy only awards a maximum of a little over 500,000 euros for compensation. Surely that is nowhere near enough compensation, considering that this case destroyed Amanda and Raffaele's lives, obliged them to take on huge legal costs, interrupted their studies, made them unemployable during the almost 8 years the case dragged on, led to some members of their families losing their jobs, all the flights they had to pay for, the emotional trauma that may make it difficult for them to keep a steady job and for which they may need to pay for treatment.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sat May 02, 2015 10:44 pm

I have done some library research using HUDOC to find decisions that would somehow contradict my understanding (and perhaps that of others) about the implications of Salduz v. Turkey and related case-law to Amanda's application.

My search produced two decisions of inadmissibility.

One is Simons v Belgium 71407/10. This application was inadmissible IIUC because it was unknown at the time when it was filed and judged whether the lack of a lawyer during the applicant's interrogation or questioning would materially affect the trial result; the trial had not begun and of course there had been no conviction. The applicant was in remand custody and claimed a violation under Convention Article 5.1 (right to liberty), not Article 6.1 (fair trial). Summarizing paragraphs 32 through 34, the ECHR decided that failure to provide a lawyer during interrogation or questioning did not itself, at least in this case, render the custody unlawful and thus a violation of Article 5.1. It should be noted that apparently the applicant in this case did not claim to have made statements under pressure and apparently did not retract her confession. The applicant had also been warned during her interview that her statements could be used against her. These three items are among the differences between Simons v Belgium and the Knox case. For Knox, the calunnia charge did result in a conviction, and it was based solely on statements she had made without benefit of a lawyer during an allegedly coercive interrogation with an interpreter serving as a "mediator" or subsequently while in custody.

The second ECHR decision is Diallo v Sweden 13205/07. In this application, Diallo, a French national, claimed that Sweden violated her Convention rights under Articles 6.3e (right to a fair interpreter) and 6.1 (right to a fair trial). Diallo had been found on entry to Sweden by Customs to have two packages of heroin in her suitcase. The first interpreter provided by Swedish Customs was a French-speak Customs agent who was not a certified or authorized interpreter. The applicant in particular claimed that one of her statements was misinterpreted and led to her conviction. The ECHR, however, observed that the disputed statement was far from the only evidence in the criminal proceedings against her and that there was nothing to indicate that it was decisive to the outcome of the case.

Quote:
31. In these circumstances, the Court considers that the applicant received sufficient linguistic assistance during the first interview with the Swedish Customs. Subsequently, an authorised interpreter was involved each time the applicant was heard, both during the pre-trial stage and the trial. Accordingly, the Court is unable to discern any violation of the right to a fair trial.

32. It follows that the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.


Again, there are major differences between the Diallo case and the Knox case with respect to the allegations about the role of the interpreter. In Knox's case, the involvement of the interpreter as "mediator" was significant in generating Knox's false statements in the interrogation. And these false statements, and perhaps the two Memoriales written while Knox was in custody without a lawyer as an attempt to withdraw or cast doubt on the false statements, are the sole basis for the calunnia conviction.

In conclusion, IMO, there is no indication from either Simons v Belgium or Diallo v Sweden that the ECHR would find Knox's application inadmissible.
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Re: ECHR: Convention Violations and Case-Law

Postby pmop57 » Sun May 03, 2015 4:12 am

The basic is the interrogation methods leading to (1) AK 'acknowledging', 'confirming' that PL was the perpetrator and (2) putting herself at the crime scene, the alleged 'confession' that she had been there but that she was not involved in the stabbing.

(1) sentenced for 'calumny' because pointing to an innocent man (that she must have known was innocent)
(2) acquitted on al charges against her (she was not there, she was not part of killing MK, the crime at her charge did not exist)

Correlating (1) and (2) clearly demonstrates that there was no reason for AK, knowing that she was innocent and knowing that she way in no way involved in committing the crime, to incriminate anybody to have participated in committing or committing the crime and spacifically to (1) she could objectively at no moment have known with certainty whether PL was involved in committing the crime.

So the only relevant remainig question is why did she point to PL during the all night interrogation?

The answer can only be that the way(s)/method(s) the interrogation was conducted what putting such 'pressure' on AK who confused and not anymore able to differiate facts and allegations ceeded to point to PL as proposed by the interrogators.

IMO she was coerced to commit the crime of calumny, she was pressured by the interrogators to commit the crime of calumny (in Germany this is called 'Nötigung'), pressuring somebody to commit a crime he never intended to commit (a crime not committed by one's own will).
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sun May 03, 2015 5:14 am

pmop57 wrote:The basic is the interrogation methods leading to (1) AK 'acknowledging', 'confirming' that PL was the perpetrator and (2) putting herself at the crime scene, the alleged 'confession' that she had been there but that she was not involved in the stabbing.

(1) sentenced for 'calumny' because pointing to an innocent man (that she must have known was innocent)
(2) acquitted on al charges against her (she was not there, she was not part of killing MK, the crime at her charge did not exist)

Correlating (1) and (2) clearly demonstrates that there was no reason for AK, knowing that she was innocent and knowing that she way in no way involved in committing the crime, to incriminate anybody to have participated in committing or committing the crime and spacifically to (1) she could objectively at no moment have known with certainty whether PL was involved in committing the crime.

So the only relevant remainig question is why did she point to PL during the all night interrogation?

The answer can only be that the way(s)/method(s) the interrogation was conducted what putting such 'pressure' on AK who confused and not anymore able to differiate facts and allegations ceeded to point to PL as proposed by the interrogators.

IMO she was coerced to commit the crime of calumny, she was pressured by the interrogators to commit the crime of calumny (in Germany this is called 'Nötigung'), pressuring somebody to commit a crime he never intended to commit (a crime not committed by one's own will).


pmop,

I agree with your analysis. IMO, the ECHR will find that Amanda's Convention rights under Article 3 (prohibition against inhuman and degrading treatment) were violated because of the way the interrogation was conducted, which obviously resulted in an overcoming of her will to resistance. The case-law is, for example, Gafgen v Germany.

It should also be noted, IMO, that the reasoning used by the Hellmann court to convict Amanda of calunnia was flawed in several respects, so as to be arbitrary and thus in violation of Convention Article 6.1. In particular, Hellmann's motivation report does not take into account the testimony of the defense memory expert (which would supposedly be critical to the question of will) and does not logically follow from the finding that Amanda had not been involved in the crime and was not at the crime scene at the time of the murder. The recent finalization of the acquittal of the murder by the CSC will also support this line of argument, that only the police had the belief that Patrick Lumumba was the murderer, and imposed this view on Amanda, making her state it, when she was vulnerable due to their interrogation techniques.
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Re: ECHR: Convention Violations and Case-Law

Postby arbmahla » Sun May 03, 2015 7:29 am

Good morning Numbers-
I have been told that there is a large case backlog at the ECHR. Do you have any idea as to what the wait time will be in regards to Amanda's calumny case?
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Re: ECHR: Convention Violations and Case-Law

Postby pmop57 » Sun May 03, 2015 8:03 am

Numbers,
I think that Hellmann was particular the way he didn't want to engage the Police and the Prosecution (it has not to be forgotten that Mignini was entire part of the interrogation, his arguing just having acted like a notary was nothing but obfuscating his involvement, it was much more acknowledging that the interrogation was obviously contrary to legality).

All the further arguing of Hellmann was clearly in favour of AK having been manipulated by the interrogators to point to PL. But nevertheless after these considerations he ruled against her.

Also not to forget the statement of Police, "finally she buckled telling us what we already knew", this even more telling than anything else!

Later Hellmann was clearly stating that he should have ruled differently.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sun May 03, 2015 10:17 am

arbmahla wrote:Good morning Numbers-
I have been told that there is a large case backlog at the ECHR. Do you have any idea as to what the wait time will be in regards to Amanda's calumny case?


I wish I had some way to form a realistic idea of the timing. As of March 31, 2015, there were 9000 cases against Italy pending a judicial formation. Italy then had the 4th highest number of cases pending. It could be that Amanda's application could come up for communication to Italy (the next formal observable step, suggesting preliminary admissibility) tomorrow or a year from tomorrow. One thought I have seen in some forum - here or at ISF - is that ECHR will communicate the case to Italy soon after the CSC publishes its motivation report. That could be, although the ECHR with all the backlog has its own schedule, I am sure.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon May 04, 2015 10:46 pm

There is a potentially important ECHR case relating to violations of Convention Article 3 that appears important for Amanda Knox's application claiming a violation of her rights by Italy due to her conviction for calunnia against Patrick Lumumba. That case is Hajnal v. Serbia 36937/06 19/06/2012. Of interest for this post are specifically paragraphs 94 - 99.

There are several features of Hajnal v Serbia that are important and relevant to Amanda's application. In this post, I will treat only the issue of procedural violation, because it is relatively straight-forward and yet there have been claims (in particular, by "Machiavelli") that Amanda and her defense team did not satisfy Italian law in not filing the proper paper-work complaint, and thus would not have an admissible ECHR regarding a procedural violation of Convention Article 3. A procedural violation of Convention Article 3 occurs when a Council of Europe State does not mount an effective investigation of a credible allegation that State agents have committed acts of torture or inhuman and degrading treatment against a person within the practical jurisdiction of that State.

In Hajnal v. Serbia, the Serbian Government presented two defenses against a claim by the applicant, Hajnal, that it had committed a violation of his Convention Article 3 (procedural aspect) rights. First, it claimed that there was insufficient evidence that in fact any abuse of the applicant had occurred. Second, it claimed that the applicant had not filed a written criminal complaint in proper form regarding his allegations of police abuse as required (apparently by Serbian law), and therefore no investigation had been started.

The applicant maintained that he had brought his complaint properly to the attention of judges and the competent prosecuting authorities.

The ECHR judgment stated the following:

96. The Court reiterates that where a person makes a credible assertion that he has suffered treatment contrary to Article 3 at the hands of State agents, that provision, read in conjunction with the general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see, among many authorities, Labita v. Italy, cited above, § 131). Whatever the method of investigation, the authorities must act as soon as an official complaint has been lodged.

97. Even when, strictly speaking, no complaint has been made, an investigation must be started if there are sufficiently clear indications that ill-treatment has been used (see Stanimirović v. Serbia, no. 26088/06, § 39, 18 October 2011).

98. The Court has also held that the investigation should be capable of leading to the identification and punishment of those responsible. If not, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for State agents to abuse the rights of those within their control with virtual impunity (see Labita v. Italy, cited above, § 131). The investigation must also be thorough: the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. Furthermore, the investigation must be prompt and independent. Lastly, the investigation must afford a sufficient element of public scrutiny to secure accountability. While the degree of public scrutiny required may vary, the complainant must be afforded effective access to the investigatory procedure in all cases (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 137, ECHR 2004-IV).

99. In the present case, having already found a substantive violation of Article 3, the Court further notes that the applicant had indeed complained of having been abused by the police. He did so before the investigating judge and the Deputy Public Prosecutor, as well as the trial and appellate chambers (see paragraphs 22, 31, 44 and 46 above). Yet, despite the Convention and the domestic law requiring that an allegation of this sort be explored ex officio (see paragraphs 97 and 54 above, in that order), no separate abuse-related investigation, aimed at the identification and punishment of those responsible, was ever instituted by the competent authorities. It is thus clear that the aforementioned standards have not been satisfied. Accordingly, there has been a violation of Article 3 of the Convention.


{Bold emphasis added.}
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue May 05, 2015 11:20 pm

We should attempt to resolve some of the seeming issues about when the police and prosecution "framing" began. First of all, it should be recalled that "framing" is a term that is sometimes better replaced by "official misconduct".

The term "official misconduct" removes the concern that the term "framing" is inappropriate because the police or prosecution in their minds may have considered the subject guilty and then fabricated or withheld elements of evidence or interpretation of evidence.

There is another issue if one delves into the quite difficult problem of "mind reading" if one believes the police or prosecutor did believe the subject was guilty: Was the "belief in guilt" or "suspicion" a "reasonable" or "probable" or "plausible" one, or was it "unreasonable" or "arbitrary". Suppose for example, that Giobbi sincerely believed that Amanda was very likely to be guilty of murder because she wiggled her hips (in his perception) and said "voila" when putting on booties before entering the cottage. Can this be considered a "reasonable" basis for suspicion?

To overcome such issues about "mind reading" in the face of a lack of available trustworthy information on the state of mind of the police and prosecutor, one may attempt to rely on their overt (observable) actions.

For example, in the ECHR case Hajnal v. Serbia 36937/06, Hajnal was arrested for several days in a row each morning by Serbian police at about 4:00 or 5:00 am, brought in for questioning, and then released much later, after about 10 or 12 hours. On one of these days he claims he was beaten by the police. On the next day he confessed to a serious crime. (He had a retained lawyer, but while under police custody, he dismissed that lawyer for not allowing him to confess, and was assigned a defense lawyer who did not attend his interrogation. He claimed the dismissal was done under duress.) The ECHR judged in the Hajnal case that the police actions in arresting Hajnal, questioning him for lengthy periods, releasing him, and then rearresting him was part of a pattern showing violation of Convention Article 3, prohibition against inhuman and degrading treatment, even if the alleged beating by police could not be documented BARD.

Application to the Amanda Knox - Raffaele Sollecito case: Amanda was requested to appear at the police station for questioning for many hours duration on each of Nov. 2, 3, and 4, 2007. She was not formally under arrest during these questionings, but persons requested to answer questions as a witness by police may be under some obligation to do so. Were these repeated questionings for long durations comparable to the repeated ones in Hajnal (without the element of coercion including allegations of threats and hitting before the Nov. 5/6 interrogation)? Were they simply repetitive and designed to wear down the resistance or to fatigue Amanda Knox? If so, then the official misconduct may have begun as early as Nov. 3, 2007.

In any case, IMO, the official misconduct must certainly have begun with the planning of the interrogation of Nov. 5/6, 2007. Testimony of Giobbi documents for ECHR purposes that this interrogation was planned for both Knox and Sollecito, and this type of interrogation is that used for suspects. There were clear undisputed violations of Italian law (procedural) and Constitution in the Nov. 5/6 interrogations, and allegations of criminal violations (including threats and hitting). And with the conviction of Knox for calunnia, there was clearly a violation of Convention Articles 6.1 (right to a fair trial) with 6.3c (right to a lawyer for defense, which generally must be provided during interrogation).

ETA:
For completeness and accuracy, here is the bottom line of the ECHR judgment for the Hajnal v Serbia case 36937/06 regarding the violation of Convention Article 3 (substantive aspects):

92. In view of the above, the Court concludes that the applicant was physically abused on 17 August 2005 and was, at the very least, mentally coerced into giving his confession on 18 August 2005, events of those two days being inextricably linked to each other (see, mutatis mutandis, Milanović v. Serbia, no. 44614/07, § 78, 14 December 2010). Indeed, on 22 March 2006 the Municipal Court itself concluded that the applicant’s repeated arrests amounted to police harassment aimed at obtaining his confession (see paragraph 39 above).

93. Accordingly, the Court considers that there has been a violation of Article 3 of the Convention on account of the inhuman and degrading treatment suffered by the applicant.

{Highlighting added.}

The highlighted statements in the judgment appear relevant to the Amanda Knox - Raffaele Sollecito case for the period Nov. 2 through Nov. 5/6, 2007 and for Knox, Nov. 6 and 7 (relating to her Memoriales 1 and 2).
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu May 14, 2015 1:37 pm

An upcoming ECHR case which may be relevant to Amanda's application against Italy for her calunnia conviction:

Petkov and Parnarov v. Bulgaria (application no. 59273/10)

Mr Petkov and Mr Parnarov claim that on the night of 3 July 2009 they attempted to intervene
between a group of young girls who were being assaulted and their assailants. A police patrol arrived
at the scene, but instead of pursuing the fleeing assailants the police officers beat Mr Petkov and Mr
Parnarov up and took them to the police station, where they were remanded in custody and then
charged with disrupting public order. They were finally released on 7 July 2009, and in 2010 the Sofia
District Court acquitted them of all the charges against them.
After their release Mr Petkov and Mr Parnarov were examined by a forensic medical expert, who
found several injuries which might have been caused by police ill-treatment at the time of their
arrest. They then lodged a complaint and a preliminary investigation was conducted, after which no
formal decision was taken. However, the prosecutor decided to prosecute Mr Petkov and
Mr Parnarov for wrongfully accusing the police officers
.

Relying on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on
Human Rights, Mr Petkov and Mr Parnarov complain that they were ill-treated by the police officers
who arrested them. Relying on Articles 3 and 13 (right to an effective remedy), they complain of the
lack of an effective investigation into their complaint and the fact that they themselves were
prosecuted for wrongful accusation
.

The bolded text is relevant to Amanda being charged with calunnia for reporting the abuse directed against her by the police during the Nov. 5/6 interrogation.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue May 19, 2015 8:49 pm

Numbers wrote:An upcoming ECHR case which may be relevant to Amanda's application against Italy for her calunnia conviction:

Petkov and Parnarov v. Bulgaria (application no. 59273/10)

Mr Petkov and Mr Parnarov claim that on the night of 3 July 2009 they attempted to intervene
between a group of young girls who were being assaulted and their assailants. A police patrol arrived
at the scene, but instead of pursuing the fleeing assailants the police officers beat Mr Petkov and Mr
Parnarov up and took them to the police station, where they were remanded in custody and then
charged with disrupting public order. They were finally released on 7 July 2009, and in 2010 the Sofia
District Court acquitted them of all the charges against them.
After their release Mr Petkov and Mr Parnarov were examined by a forensic medical expert, who
found several injuries which might have been caused by police ill-treatment at the time of their
arrest. They then lodged a complaint and a preliminary investigation was conducted, after which no
formal decision was taken. However, the prosecutor decided to prosecute Mr Petkov and
Mr Parnarov for wrongfully accusing the police officers
.

Here is an update. The ECHR has issued its judgment in this case.

Relying in particular on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, Mr Petkov and Mr Parnarov complained that they had been ill-treated by the police officers who arrested them. They also complained of the lack of an effective investigation into their complaint and the fact that they themselves had been prosecuted for wrongful accusation.

The judgment:

Violation of Article 3 (treatment)
Violation of Article 3 (investigation)

The case suggests that Amanda Knox's application to ECHR would be considered in light of the degree of investigation or lack of investigation of her claims of police abuse, and that the prosecutor charging her with calunnia against the police for stating a complaint may be viewed unfavorably for Italy by the ECHR.
Relying on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on
Human Rights, Mr Petkov and Mr Parnarov complain that they were ill-treated by the police officers
who arrested them. Relying on Articles 3 and 13 (right to an effective remedy), they complain of the
lack of an effective investigation into their complaint and the fact that they themselves were
prosecuted for wrongful accusation
.

The bolded text is relevant to Amanda being charged with calunnia for reporting the abuse directed against her by the police during the Nov. 5/6 interrogation.
Expert witness testimony must be the product of reliable principles and methods. {Paraphrase of Fed. Rules of Evidence 702c}
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Re: ECHR: Convention Violations and Case-Law

Postby struoc » Wed May 20, 2015 7:13 am

I enjoy your posts.

Question:
The ECHR will be reviewing this case, but what will they have to review? I dont understand.

It is similar to the case with the two men in police custody, but if the police lie what can be done for evidence?

The public who are mistreated and charged seem to be a great disadvantage if the police lie and other police are cowards to speak up.
What can the ECHR determine?

Would ECHR have the power to interrogate each of the Italian police who were there?
All we have in favor of something bad going on is Edgardo Giobbi's testimony mentioning screaming or crying, as I recall.
The other Perugia police either lie, or are cowards to speak the truth.
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Re: ECHR: Convention Violations and Case-Law

Postby arbmahla » Wed May 20, 2015 11:58 am

struoc wrote:I enjoy your posts.

Question:
The ECHR will be reviewing this case, but what will they have to review? I dont understand.

It is similar to the case with the two men in police custody, but if the police lie what can be done for evidence?

The public who are mistreated and charged seem to be a great disadvantage if the police lie and other police are cowards to speak up.
What can the ECHR determine?

Would ECHR have the power to interrogate each of the Italian police who were there?
All we have in favor of something bad going on is Edgardo Giobbi's testimony mentioning screaming or crying, as I recall.
The other Perugia police either lie, or are cowards to speak the truth.


"Initially, the American gave a version of events we knew was not correct. She buckled and made an admission of facts we knew were correct and from that we were able to bring them all in.” -Arturo de Felice

This is from the press conference on Nov. 7, 2007. This is an admission that the "confession" was not spontaneous, but was the result of an interrogation that was directed towards a preordained conclusion. Add to this the circumstantial evidence that the police recorded almost all interviews except the ones with Knox, Sollecito, and Lumumba. The police have given no believable explanation for this lapse. Remember that the burden of proof is on the prosecution side and because of the police's behavior, including not giving the suspects the right of council, circumstantial evidence has been established that coercive tactics were used.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Wed Jun 03, 2015 1:56 pm

arbmahla wrote:
struoc wrote:I enjoy your posts.

Question:
The ECHR will be reviewing this case, but what will they have to review? I dont understand.

It is similar to the case with the two men in police custody, but if the police lie what can be done for evidence?

The public who are mistreated and charged seem to be a great disadvantage if the police lie and other police are cowards to speak up.
What can the ECHR determine?

Would ECHR have the power to interrogate each of the Italian police who were there?
All we have in favor of something bad going on is Edgardo Giobbi's testimony mentioning screaming or crying, as I recall.
The other Perugia police either lie, or are cowards to speak the truth.


"Initially, the American gave a version of events we knew was not correct. She buckled and made an admission of facts we knew were correct and from that we were able to bring them all in.” -Arturo de Felice

This is from the press conference on Nov. 7, 2007. This is an admission that the "confession" was not spontaneous, but was the result of an interrogation that was directed towards a preordained conclusion. Add to this the circumstantial evidence that the police recorded almost all interviews except the ones with Knox, Sollecito, and Lumumba. The police have given no believable explanation for this lapse. Remember that the burden of proof is on the prosecution side and because of the police's behavior, including not giving the suspects the right of council, circumstantial evidence has been established that coercive tactics were used.


Sorry for not responding to this earlier.

The ECHR will be able to evaluate all the documentation from the trials and the pre-trial, other documents and reports, and all relevant Italian law including the constitution. Typically, it requests information from the parties - in this case, the Republic of Italy and Amanda Knox - and does not interview or question individuals. However, the ECHR has broad powers to do so, with the treaty-required assistance of the State (Italy), if the ECHR considers this important. The statement from the police at the press conference as you state would indeed be considered evidence that the police conducted the interrogation to gain an incriminating statement in support of their theory of the crime, rather than to find the truth.

I have listed in earlier posts why I consider it likely that ECHR will find that Amanda Knox's rights under the European Convention on Human Rights was violated, under Article 3 (prohibition against inhuman and degrading treatment) and also under Articles 6.1 with 6.3c (prohibition against unfair trial, with prohibition against use of statements from an interrogation conducted without a lawyer for the suspect). The judgment against Amanda was also logically inconsistent and apparently ignored an important argument from her defense consultant on memory, and so might be judged by ECHR as an arbitrary judicial reasoning, which is a violation of Article 6.1.

I have earlier given the case-law that justifies the conclusions about probable ECHR judgment against Italy. For example, the evidence that Amanda's will was altered without her consent is her writing Memoriales I and II on Nov. 6 and 7, 2007, attempting to withdraw her statements by pointing out her uncertainty (Memoriale I) and then her certainty (Memoriale II) of the unreliability of the statements extracted from her on Nov. 6, 2007. Based on ECHR case-law, such as Gafgen v Germany [GC] 22978/05 and Lyapin v Russia 46956/09:

114. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. Treatment has been held to be “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or psychological resistance, or when it was such as to drive the victim to act against his will or conscience (see Gäfgen, cited above, § 89).


The case-law regarding violation of the Convention for interrogation without a lawyer is extensive. It begins most clearly with Salduz v Turkey [GC] 36391/02 and includes Ibrahim and others v the United Kingdom 45440/04 (and all the relevant citations with that case). Interrogating a suspect while pretending the suspect is a witness in order to extract an incriminating statement is also against the Convention; case-law is Brusco v France 1466/07. Denial of a lawyer while the person is in custody (as Amanda and Raffaele were Nov. 6-8, 2007) is also a violation of the Convention; case-law is Dayanan v Turkey 7377/03.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Wed Jun 03, 2015 2:11 pm

The ECHR as agreed with the request of two of the applicants of the Ibrahim and others v the United Kingdom to refer the case for a Grand Chamber (17-judge panel) hearing. I do not anticipate that any GC hearing judgment would adversely affect Amanda's application.

On 1 June 2015 the case was referred to the Grand Chamber at the request of two of the applicants
(Mr Omar (application no. 50573/08) and Mr Abdurahman (application no. 40351/09)).

In its Chamber judgment of 16 December 2014, the European Court of Human Rights, held, by six
votes to one, that there had been no violation of Article 6 § 1 and 3 (c) (right to a fair trial and right
to legal assistance) of the Convention. The Court was satisfied that, at the time of the four
applicants’ initial police interviews, there had been an exceptionally serious and imminent threat to
public safety, namely the risk of further attacks, and that this threat provided compelling reasons
justifying the temporary delay in allowing the applicants’ access to lawyers. The Chamber also found
that no undue prejudice had been caused to the applicants’ right to a fair trial by the admission at
their trials of the statements they had made during police interviews and before they had been
given access to legal assistance. It took into account the counterbalancing safeguards contained in
the national legislative framework, as applied in each of the applicants’ cases; the circumstances in
which the statements had been obtained and their reliability; the procedural safeguards at trial, and
in particular the possibility to challenge the statements; and the strength of the other prosecution
evidence. In addition, as concerned the fourth applicant, who had made self-incriminating
statements during his police interview, the Chamber emphasised the fact that he had not retracted
his statement even once he had consulted a lawyer but had continued to rely on his statement in his
defence up until his request that it be excluded at trial.


See the ECHR home page for a link to the PDF. http://www.echr.coe.int/Pages/home.aspx?p=home&c=
Expert witness testimony must be the product of reliable principles and methods. {Paraphrase of Fed. Rules of Evidence 702c}
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue Jun 16, 2015 7:20 pm

Here is the bottom line of the ECHR judgment in the case of Schmid-Laffer v. Switzerland (application no. 41269/08). She was accused of asking her partner (live-in boyfriend?) to kill her husband (they were in the process of divorcing), and the boyfriend did make such an attempt. She was convicted and claimed her Convention rights had been violated because she had been interrogated without a lawyer and without being warned of the rights to remain silent and that anything she said could be used against her.

However, the ECHR judged that the conviction was fair (not a violation of Article 6) because she was convicted on the basis of other evidence not derived from her interrogation, and that indeed in her complaint to the ECHR, she did not identify the specific statements from the interrogation that had been used against her. Minutes of the interrogation had been recorded by the authorities, Ms. Schmid-Laffer apparently had not complained to the Swiss authorities about any unfairness regarding the interrogation in a timely way, and she was not arrested at the end of the interrogation. There apparently was no complaint of coercion or violation of Article 3 during the interrogation.

These ECHR findings distinguish the Schmid-Laffer v Switzerland case from Amanda Knox's application against Italy for her conviction for calunnia against Patrick Lumumba, as I understand that application from her Nov., 2013 blog post.

The ECHR is being consistent with the guidelines it established in Ibrahim et al. v the UK. The ECHR is stating that Ms. Schmid-Laffer's conviction was sound because it was based on evidence not derived from her improperly conducted interrogation. And her interrogation was not in violation of Article 3. I haven't studied these claims by the ECHR in part because of the language barrier, and of course, the information about the evidence in the ECHR is highly condensed. But I still feel confident that Amanda has a strong case that Italy violated her Convention rights. The calunnia conviction is entirely tied to statements she made during what she has stated was a coercive interrogation that violated Article 3 (prohibition of inhuman or degrading treatment).

The original judgment text is in French. Here are the ECHR findings, Google translated, with a little help from me.

Findings of the {ECHR} Court

36. The Court first recalls that, while the Convention provides in Article 6 the right to a fair hearing, it does not regulate on the admissibility of evidence as such, which is primarily a matter of domestic law . It must examine whether the procedure, including how evidence was obtained, was fair as a whole (Gäfgen v. Germany [GC], No. 22978/05, §§ 162-163, ECHR 2010).

37. The Court further recalls that the right to silence and the right not to incriminate oneself are generally recognized international standards which lie at the heart of the notion of fair trial (Saunders v. The United Kingdom, 17 December 1996, § 68, Reports 1996-VI, Allan v. the United Kingdom, No. 48539/99, § 44, ECHR 2002-IX, and Jalloh v. Germany [GC], No. 54810/00, § 100, ECHR 2006 -IX). The right for the accused to remain silent and not to contribute to incriminating himself can not reasonably be confined to confessions of wrongdoing or to remarks which are directly incriminating (Saunders, cited above, § 71). Just as his statements are likely to substantially affect the position of the accused (Chabelnik v. Ukraine, No. 16404/03, § 57, 19 February 2009), statements made when the accused is not informed of his rights to remain silent and not to incriminate himself are to be treated with extreme caution (Lutsenko v. Ukraine, No. 30663/04, § 51, 18 December 2008).

38. The Court also notes that the right not to contribute to incriminating himself and the right to remain silent are intended to protect the accused against improper compulsion by the authorities and thus to avoid miscarriages of justice and achieve the aims of Article 6. In examining whether a procedure has extinguished the very essence of the right not to contribute to incriminating a person, the Court must consider the nature and degree of the compulsion, the existence of relevant safeguards in the procedure and the use made of any material so obtained (Bykov v. Russia [GC], no 4378/02, § 92, 10 March 2009).

39. In the section on the admissibility of this complaint, the Court found that the questioning of 1 August 2001 was, as such, capable of adversely affecting the fairness of the criminal trial against the applicant subsequently conducted (paragraph 31 above). The Court concludes that, in the circumstances of this case, it was up to the police to inform the applicant of her right not to incriminate herself and to remain silent during questioning (Aleksandr Zaichenko v. Russia, No. 39660/02, § 52, 18 February 2010). On the other hand, the Court fully agrees with the domestic authorities that the interrogation was only one piece of evidence of minor importance (see, conversely, Aleksandr Zaichenko, cited above, § 58). It considers that the Federal Court has substantiated in detail and convincingly that the courts {?} and the appellant relied in particular on the testimony of MS, regarded as credible by the domestic authorities. The said statements were corroborated by the testimony of many others (see paragraph 21 above). In other words, the conviction was not made solely on the basis of information obtained during the interrogation of 1 August 2001 (see in this sense O'Halloran and Francis v. The United Kingdom [GC], 15809/02 and 25624/02 our, § 60, ECHR 2007-III). Moreover, the applicant, duly represented by a lawyer before the domestic courts and before the Court, does not specify exactly what statements made during the interrogation of 1 August 2001 have subsequently been used by the Swiss authorities for her conviction. It should also be noted, reading the minutes of that examination (see paragraph 10 above), that the applicant had not complained on that occasion and had been left at liberty at its conclusion.

40. In light of the foregoing, the Court concludes that the trial, seen in its entirety, was not unfair. Consequently, there has been no violation of Article 6 § 1.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sat Jun 27, 2015 11:48 pm

The issue of the use of statements from Rudy Guede against Amanda Knox or Raffaele Sollecito in their trials, whether considered independently or filtered through the verdict or motivation reports generated from his definitive fast-track trial, must be considered in light of ECHR case-law, as well as Italian criminal procedural law (CPP Article 526 para. 1-bis) and the provisions of Article 111 of the Italian Constitution. Guede chose not to be examined by Knox's and Sollecito's defense counsels, in accordance with Italian law. Thus Italian law (CPP Art. 526 para. 1-bis) and It. Const. Art. 111 do not allow use of any of his statements against Knox or Sollecito in their trials. Futhermore, ECHR case-law (Luca v Italy, 33354/96 27-02-2001) does not allow such statements given in circumstances in which cross-examination was not allowed to be used to convict a defendant.

The relevant text of the ECHR judgment from Luca v Italy is presented here:

38. The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, Doorson v. the Netherlands, judgment of 26 March 1996, Reports 1996-II, p. 470, § 67, and Van Mechelen and Others, cited above, p. 711, § 50).

39. The evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence. As a general rule, paragraphs 1 and 3 (d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage (see Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238, p. 21, § 49, and Van Mechelen and Others, cited above, p. 711, § 51).

40. As the Court has stated on a number of occasions (see, among other authorities, Isgrò v. Italy, judgment of 19 February 1991, Series A no. 194-A, p. 12, § 34, and Lüdi, cited above, p. 21, § 47), it may prove necessary in certain circumstances to refer to depositions made during the investigative stage (in particular, where a witness refuses to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia-type organisations). If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Article 6 §§ 1 and 3 (d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Unterpertinger v. Austria, judgment of 24 November 1986, Series A no. 110, pp. 14-15, §§ 31-33; Saïdi v. France, judgment of 20 September 1993, Series A no. 261-C, pp. 56-57, §§ 43-44; and Van Mechelen and Others, cited above, p. 712, § 55; see also Dorigo v. Italy, application no. 33286/96, Commission’s report of 9 September 1998, § 43, unpublished, and, on the same case, Committee of Ministers Resolution DH (99) 258 of 15 April 1999).

41. In that regard, the fact that the depositions were, as here, made by a co-accused rather than by a witness is of no relevance. In that connection, the Court reiterates that the term “witness” has an “autonomous” meaning in the Convention system (see Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33). Thus, where a deposition may serve to a material degree as the basis for a conviction, then, irrespective of whether it was made by a witness in the strict sense or by a co-accused, it constitutes evidence for the prosecution to which the guarantees provided by Article 6 §§ 1 and 3 (d) of the Convention apply (see, mutatis mutandis, Ferrantelli and Santangelo v. Italy, judgment of 7 August 1996, Reports 1996-III, pp. 950-51, §§ 51-52).

42. In the light of the foregoing, the reasons given by the Court of Cassation in its judgment of 19 October 1995 for dismissing the appeal brought under Article 6 § 3 (d) of the Convention – reasons on which the Government also relied in part – do not appear pertinent. In particular, the fact that under the domestic law in force at the material time (see paragraph 26 above) the court could rule statements made before the trial admissible if a co-accused refused to give evidence could not deprive the accused of the right which Article 6 § 3 (d) afforded him to examine or have examined in adversarial proceedings any material evidence against him.

43. In the instant case, the Court notes that the domestic courts convicted the applicant solely on the basis of statements made by N. before the trial and that neither the applicant nor his lawyer was given an opportunity at any stage of the proceedings to question him.

44. In those circumstances, the Court is not satisfied that the applicant was given an adequate and proper opportunity to contest the statements on which his conviction was based.

45. The applicant was, therefore, denied a fair trial. Accordingly, there has been a violation of Article 6 §§ 1 and 3 (d).
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sun Jun 28, 2015 5:22 pm

What does "reasonable suspicion" for the grounds of an arrest mean to the ECHR?

There is a definition in ECHR case-law, but deciding whether or not there was indeed reasonable suspicion for an arrest is highly dependent on the details of each case.

Here is a relevant excerpt from: ILGAR MAMMADOV v. AZERBAIJAN 15172/13 22/05/2014

87. The Court reiterates that in order for an arrest on reasonable suspicion to be justified under Article 5 § 1 (c), it is not necessary for the police to have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant is in custody (see Brogan and Others v. the United Kingdom, 29 November 1988, § 53, Series A no. 145‑B). Nor is it necessary that the person detained should ultimately have been charged or taken before a court. The object of detention for questioning is to further a criminal investigation by confirming or discontinuing suspicions which provide the grounds for detention. Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation (see Murray v. the United Kingdom, 28 October 1994, § 55, Series A no. 300‑A).

88. However, the requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention. The fact that a suspicion is held in good faith is insufficient. The words “reasonable suspicion” mean the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as “reasonable” will depend upon all the circumstances (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182). The length of the deprivation of liberty may also be material to the level of suspicion required (see Murray, cited above, § 56).

89. When assessing the “reasonableness” of the suspicion, the Court must be enabled to ascertain whether the essence of the safeguard afforded by Article 5 § 1 (c) has been secured. Consequently, the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence (see Fox, Campbell and Hartley, cited above, § 34 in fine).

90. The Court notes that the applicant in the present case complained of the lack of “reasonable” suspicion against him throughout the entire period of his detention, including both the initial period following his arrest and the subsequent periods when his remand in custody had been authorised and extended by court orders. In this connection, the Court reiterates that the persistence of reasonable suspicion that the person arrested has committed an offence is a prerequisite for the lawfulness of the continued detention (see, among many other authorities, Stögmüller v. Austria, 10 November 1969, p. 40, § 4, Series A no. 9, and McKay v. the United Kingdom [GC], no. 543/03, § 44, ECHR 2006‑X). Accordingly, while reasonable suspicion must exist at the time of the arrest and initial detention, it must also be shown, in cases of prolonged detention, that the suspicion persisted and remained “reasonable” throughout the detention.

With respect to the arrests of Amanda Knox, Raffaele Sollecito, and Patrick Lumumba on Nov. 6, 2007, and their subsequent confirmation hearing for the arrests on Nov. 8, 2007, there is information* suggesting that the arrests were not based on good faith reasonable suspicion, and that in particular, the police and prosecutor were aware as of Nov. 8, 2007 or earlier that the DNA profile obtained from the rape kit analysis showed that neither Sollecito nor Lumumba had raped Meredith Kercher, but some other male had. This would have been further confirmation of the unreliability of the coerced statements obtained from Knox in her unrecorded interrogation by the police and PM Mignini, and which she impeached in her Memoriales 1 and 2 of Nov. 6 and 7, 2007. The grounds for the arrests were based almost entirely on the statements made by Knox in the Nov. 5/6 interrogation and a truncated and thus distorted version of her cell phone text message to Lumumba.

*ETA: See: http://www.amandaknoxcase.com/guede-dna-investigation/
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Jul 06, 2015 1:58 pm

A relevant ECHR case (although it has differences from the AK-RS case):

KOVALCHUK v. UKRAINE 21958/05 04/11/2010

A man, possibly suffering from alcohol intoxication, was brought by Ukrainian police to a detox center. The next day, he was released from the detox center, but then arrested by police for disobeying a police officer. Two days later he confessed to murdering a man and led police through a walk-through of the murder. However, after two months, the investigation against the man were dropped because there was no confirming evidence whatsoever. It is noteworthy that emergency medical treatment had to be called for the man on the day he was arrested, prior to his formal arrest, by the police, and several times after that, relating to various symptoms, including contusions the origin of which were not explained without contradictions.

The ECHR judged the case to be violations of Convention Article 3 in both the substantive branch (ill-treatment) and procedural branch (failure to conduct an effective investigation).

The text relating to finding the substantive violation is highly relevant, dealing with the sudden "ability" of an innocent to confess in detail to a murder and the lack of procedural guarantees in his detention: his being questioned as a witness rather than a suspect and the absence of a lawyer. The police "used the applicant's arrest as a pretext to break his resistance in order to obtain self-incriminating statements."

60. In addition, the Court refers to the findings of the domestic courts (see paragraphs 41 and 45 above) and finds it remarkable that on 9 September 2002, the third day of his detention, the applicant confessed to a murder of which he was innocent (see paragraphs 11 and 21 above). Furthermore, on 10 September 2002 the applicant actively participated in a reconstruction of the crime scene and gave a detailed explanation of his purported participation in the murder. Noting that later on the same day the applicant was hospitalized in a delirious state, a strong suspicion arises that even if they did not instigate the applicant's psychotic fit, the police at least took advantage of his vulnerable emotional state and pressured the applicant into giving a false confession. This suspicion is confirmed by the apparent lack of procedural guarantees surrounding the applicant's interrogation, as he was questioned as a witness rather than as a suspect and in the absence of a lawyer. This, in conjunction with other irregularities surrounding the applicant's detention in custody, in particular, the two conflicting records of his arrest on 7 September 2002 and ambiguous evidence concerning the actual time of his detention in custody (see paragraphs 9, 10, 44 and 45 above), gives rise to a strong suspicion that regardless of whether the police resorted to physical violence, they used the applicant's arrest as a pretext to break his resistance in order to obtain self-incriminating statements.

61. The Court finds that such a practice is contrary to Article 3 of the Convention (see, mutatis mutandis, Jalloh v. Germany [GC], no. 54810/00, § 82, ECHR 2006‑IX, and Gäfgen v. Germany [GC], no. 22978/05, § 131, ECHR 2010‑...) and, especially given the applicant's vulnerable state of health at the time of his detention in custody, qualifies as inhuman and degrading treatment.

62. In the light of the above, the Court concludes that there has been a breach of Article 3 of the Convention in respect of the applicant's ill‑treatment.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Jul 09, 2015 6:51 pm

Yet another ECHR case of interest:
Grinenko v Ukraine 33627/06 15-11-2012

Grinenko maintained that Ukraine had violated his rights under Convention Articles 3 (prohibition of torture and inhuman or degrading treatment), 5 (right to liberty, prohibition against arbitrary detention), and 6 (right to a fair trial) in the course of a criminal case: an allegation that he had ordered a murder for hire.

1. Before the ECHR, Ukraine's defense was that Grinenko's application for violation of Article 3 was inadmissible because he had not followed proper procedures for a complaint in the Ukrainian justice system. He had repeatedly mentioned his compliant in court proceedings, but had not filed the appropriate formal complaint with the authorities.

Relevance: Amanda complained of police mistreatment in court but apparently did not file the formal complaint required in Italy.

ECHR judgment: State authorities must take action whenever there is any credible allegation of mistreatment by State agents, and statements by an alleged victim in court are adequate to bring such allegations to the level of requiring an effective investigation. Failure of Ukraine to conduct an effective investigation was thus a violation of Convention Article 3. See para. 61-63.

2. Grinenko claimed he was arrested and detained from 11 pm Nov. 20 to 1:30 pm Nov. 21, 2004 without legal formalities or procedures in an unacknowledged detention under the effective control of the police.

Relevance: This seems similar to Raffaele's and Amanda's situations during the interrogations until the formal arrest warrants were drawn up. They were detained and treated as suspects but initially given the impression they were there as witnesses to be questioned. It seems clear that neither Amanda nor Raffaele were free to leave their respective interrogation rooms.

ECHR judgment: The detention was contrary to law as defined by ECHR case-law; violation of Convention Article 5.1. See para. 74-78.

3. The arrest warrant for Grinenko did not fully specify the identity of the alleged eye witness who had identified Grinenko as committing a crime.

Relevance: The arrest warrant for Amanda, Raffaele, and Patrick Lumumba appears defective in that it primarily relies on Amanda's (coerced) false statement for justification of the arrests. The text message from Amanda to Patrick as reproduced in the warrant appears to have been truncated deceptively. Without the false statement and the truncated text message, the arrest warrant has only essentially irrelevant information.

ECHR judgment: The detention of Grinenko was arbitrary, and thus a violation of Convention Article 5.3. See para. 81-84

4. Grinenko had been questioned without a lawyer while in police custody, but there was no indication that he had waived his right to a lawyer and there was no indication of a compelling reason for him not to have had a lawyer, had not been warned of his right to remain silent, had written a confession, and had been convicted on the basis of the confession.

Relevance: Similar to Amanda's interrogation and her conviction for calunnia against Patrick Lumumba.

ECHR judgment: The absence of legal assistance at this stage of the proceedings affected the applicant's (Grinenko's) right to remain silent and not to incriminate himself. Therefore, there has been a violation of Convention Articles 6.1 with 6.3c.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Jul 09, 2015 10:17 pm

What would be the judgment of the ECHR regarding the use of statements of Rudy Guede, who was not allowed to be examined by the defense, in the trials of Amanda Knox and Raffaele Sollecito?

Here is a statement of the ECHR case-law, from Vidgen v the Netherlands 29353/06 10 Jul 2012. Note that two earlier cases are invoked as precedent, Luca v Italy and Al-Khawaja and Tahery v the United Kingdom [GC].

The bottom line is that Guede's statements could not be used to convict, unless other evidence demonstrated their reliability. Also, since the decision not to be cross-examined was Guede's and there was no clear reason for it, it would likely be absolutely not acceptable to the ECHR for such unexamined statements to be used for conviction.

38. As the Court held in Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 118-119, 15 December 2011, (case-law references omitted):

“118. The Court recalls that the guarantees in paragraph 3(d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (...). In making this assessment the Court will look at the proceedings as a whole having regard to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted (...) and, where necessary, to the rights of witnesses (...). It is also recalled in this context that the admissibility of evidence is a matter for regulation by national law and the national courts and that the Court’s only concern is to examine whether the proceedings have been conducted fairly (...).

Article 6 § 3(d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (...).

...

119. Having regard to the Court’s case-law, there are two requirements which follow from the above general principle. First, there must be a good reason for the non-attendance of a witness. Second, when a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6 (the so-called ‘sole or decisive rule’).”

39. As the Court held in Lucà v. Italy, no. 33354/96, §§ 38-41, ECHR 2001‑II (case-law references omitted):

“40. As the Court has stated on a number of occasions (...), it may prove necessary in certain circumstances to refer to depositions made during the investigative stage (in particular, where a witness refuses to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia-type organisations). If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Article 6 §§ 1 and 3 (d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (...).

41. In that regard, the fact that the depositions were, as here, made by a co-accused rather than by a witness is of no relevance. In that connection, the Court reiterates that the term ‘witness’ has an ‘autonomous’ meaning in the Convention system (...). Thus, where a deposition may serve to a material degree as the basis for a conviction, then, irrespective of whether it was made by a witness in the strict sense or by a co-accused, it constitutes evidence for the prosecution to which the guarantees provided by Article 6 §§ 1 and 3 (d) of the Convention apply (...).”

40. In Al-Khawaja and Tahery v. the United Kingdom [GC], cited above, § 131, the Court set out its understanding of the expression “decisive” as applied to evidence used to ground a conviction:

“‘Decisive’ (or ‘déterminante’) in this context means more than ‘probative’. It further means more than that, without the evidence, the chances of a conviction would recede and the chances of an acquittal advance, a test which ... would mean that virtually all evidence would qualify. Instead, the word ‘decisive’ should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence; the stronger the corroborative evidence, the less likely that the evidence of the absent witness will be treated as decisive.”

41. In the same judgment (loc. cit.), § 147, the Court set out the consequences that should attach to any finding that a recorded statement by an absent witness was indeed the “sole or decisive” evidence grounding a conviction:

“The Court therefore concludes that, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales ... and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case.”

ETA: The ECHR would also need to consider that Italian procedural law (CPP Article 192 para. 3) requires corroboration by other evidence to confirm reliability of statements made by an alleged co-conspirator and the Italian Constitution (Article 111) specifically prohibits the use of unexamined statements to be used against a defendant without the consent of the defendant.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Jul 09, 2015 11:20 pm

Here is an interesting and possibly important ECHR case:
Rudnichenko v. Ukraine 2775/07 11 July 2013

In this case, the applicant had been arrested and detained for three days on an administrative charge after being caught "red-handed" breaking into a car, but only charged with the car break-in after the three days of administrative detention.

The ECHR found this to be in violation of Article 5. What is more interesting, although the complaint on the detention (called arbitrary arrest by the ECHR) was out of time (that is, past the 6-month deadline for an application to be accepted), the ECHR accepted it because "the Court considers that the authorities acted in bad faith and deceitfully in respect of the applicant, thus breaching the principles of legal certainty and protection from arbitrariness enshrined in Article 5 § 1 of the Convention." [Line #67]

I suggest that this ECHR judgment could have application to Amanda's current and any future ECHR claim and also to any claim Raffaele may file.

The bad faith and deceit of the authorities in Italy in this case needs to be emphasized in the ECHR claims, IMO.

One caveat: the Rudnichenko case was one of several that ECHR had regarding Ukraine first placing a suspect under administrative arrest and detention before placing the "real" charges against that person. The pattern of misconduct by a country may be important to ECHR.

Another point: Apparently if the "reasonable suspicion" vanishes or diminishes during the detention period, the detention should end or diminish. The ECHR wrote:

78. As the Court has held in its case-law on many occasions, the reasonableness of a period of detention is never assessed in abstracto. In other words, Article 5 § 3 of the Convention cannot be seen as authorising pre-trial detention unconditionally, provided that it lasts no longer than a certain period. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see, for example, Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003‑I).

79. The Court further emphasises that the persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, § 153, ECHR 2000‑IV).

In the Amanda Knox - Raffaele Sollecito case, could the detention be honestly justified by the unreliable evidence, obtained by forensic malpractice or possibly laboratory fraud?
Expert witness testimony must be the product of reliable principles and methods. {Paraphrase of Fed. Rules of Evidence 702c}
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Fri Jul 10, 2015 1:53 pm

Was the arrest confirmation hearing before Magistrate Matteini, and subsequent judicial reviews of the arrest, conducted fairly, according to the ECHR?

Was the hearing sufficiently adversarial? Was there equality of arms? Was all the relevant information that the prosecution had at that time, such as that DNA of neither Raffaele nor Patrick was found in the victim or in the murder room, but that of another male had been, disclosed to the defense?

For information on deductions relating to the DNA evidence availability, see http://www.amandaknoxcase.com/guede-dna-investigation/

Probably not, based on the case:
LUTSENKO v. UKRAINE 6492/11 03/07/2012

89. The Court observes that the applicant’s detention in the present case falls within the ambit of Article 5 § 1 (c). In such a situation, when the lawfulness of detention pending investigation and trial is examined, a hearing is normally required. Furthermore, the proceedings must be adversarial and must always ensure equality of arms between the parties – the prosecutor and the detainee. This means, in particular, that the detainee should have access to the documents in the investigation file which are essential for assessing the lawfulness of his detention. The detainee should also have an opportunity to comment on the arguments put forward by the prosecution (see Lebedev v. Russia, no. 4493/04, § 77, 25 October 2007, with further references).

90. In the circumstances of the present case, the Court has already established that the applicant and his lawyer were not informed in advance about the subject of the hearing (see paragraph 77 above). The Court has further observed that in its decision ordering the applicant’s detention the first-instance court did not examine the necessity of the applicant’s deprivation of liberty in a satisfactory manner (see paragraphs 66 to 74 above). Furthermore, the domestic court did not consider the possibility of using measures other than deprivation of liberty, although the applicant’s lawyer did lodge a request for bail. In addition to those shortcomings, the applicant’s request to be afforded appropriate time to study the materials brought forward by the prosecution and to prepare his defence was refused without any justification. The Court cannot accept the Government’s argument that the applicant did not need to review the materials supporting the prosecutor’s application as he was aware of the facts described in the said application. It was for the applicant and his lawyer, and not the authorities, to decide whether or not he needed to study the materials provided in support of his arrest. Such behaviour by the domestic authorities seriously affected the equality of arms between the parties.

95. The Court reiterates that Article 5 § 4 of the Convention entitles arrested or detained persons to a review of the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of the deprivation of their liberty. This means that the competent court has to examine not only compliance with the procedural requirements of domestic law, but also the reasonableness of the suspicion underpinning the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Butkevičius v. Lithuania, no. 48297/99, § 43, ECHR 2002-II, and Solovey and Zozulya v. Ukraine, nos. 40774/02 and 4048/03, § 70, 27 November 2008).

96. The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question. Thus, the proceedings must be adversarial and must always ensure “equality of arms” between the parties (see A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 203 - 204, ECHR 2009‑.... with further references). Equality of arms is not ensured if the defending party is denied access to those documents which are essential in order to raise an effective challenge to the lawfulness of his detention (see, mutatis mutandis, Fodale v. Italy, no. 70148/01, § 41, ECHR 2006‑VII). It may also be essential that the individual concerned should not only have the opportunity to be heard in person but that he should also have the effective assistance of his lawyer (see Bouamar v. Belgium, 29 February 1988, § 60, Series A no. 129).
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Fri Jul 10, 2015 2:55 pm

Here's another ECHR case relating to violation of Convention Article 5 (right to liberty, prohibition of arbitrary detention). The detention to be lawful for ECHR purposes must not merely satisfy domestic procedural law, but also be fair according to ECHR case-law.

VENSKUTĖ v. LITHUANIA 10645/08 11/12/2012

75. The Court reiterates that Article 5 of the Convention enshrines a fundamental right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. In proclaiming the “right to liberty”, paragraph 1 of Article 5 contemplates the physical liberty of the person; its aim is to ensure that no one is deprived of that liberty in an arbitrary fashion. The Court also points out that paragraph 1 of Article 5 makes it clear that the guarantees it contains apply to “everyone”. Sub‑paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds. Where the “lawfulness” of detention is at issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see Creangă, cited above, § 84).

76. The Government appeared to argue that the applicant’s arrest had been necessary for the effectiveness of the pre-trial investigation because she had been a suspect in an insurance fraud case. The SBGS officers had had full jurisdiction to investigate that crime. The applicant’s arrest thus could be justified under sub-paragraph (c) of Article 5 § 1 of the Convention.

77. On the facts of the case the Court observes that on 23 May 2005 the prosecutor did indeed order the Vilnius city SBGS officers to open a pre‑trial investigation on the basis that one of their colleagues was suspected of having committed a crime of fraud. It also notes that under Articles 167, 171 and 172 of the Code of Criminal Procedure, and Article 2 § 6 of the Law on State Border Guard Service, the SBGS officers are allowed to conduct pre-trial investigations. The Court thus finds that the officers had the competence to take investigative measures in respect of the applicant.

78. The Court notes that the parties dispute the applicant’s status until 3 p.m. of that day, when the record of her provisional arrest was drawn up. The applicant contended that she had been treated as a suspect, while the Government appeared to maintain that the applicant had merely had a conversation with the investigators and thus did not yet have the status of suspect.

79. Be that as it may, the Court cannot overlook the fact that, in pursuance of Article 179 of the Code of Criminal Procedure, an investigating officer is under an obligation to draw up a report of the questioning of a suspect or a witness, either from the moment of questioning or immediately afterwards. The Court has already found that during the time at issue the applicant was questioned by the investigators, yet no record of her questioning was drawn up. Accordingly, the applicant did not have her rights explained to her, in accordance with Articles 183 and 187 of the CCP (paragraph 47 above), either as a witness or as a suspect. In this context the Court notes that a record of the applicant’s questioning as a suspect was not drawn up until the following day at 4.15 p.m. (see paragraph 14 above). The Court finds this particularly troubling, given that the investigating officers appear to have relied on tactics where someone was first brought to their premises to testify as a witness or even in an unspecified capacity, while in reality they considered that person to be a suspect. Such approach may deprive the alleged suspect of the procedural guarantees that follow from the requirements of fair trial (see, mutatis mutandis, Salduz v. Turkey [GC], no. 36391/02, § 54, ECHR 2008). That being so, the Court finds that the SBGS officers’ intention was to threaten the applicant in order to extract information from her about the crime they were investigating.

80. Lastly, the Court has had occasion to hold that the absence of an arrest record must in itself be considered a most serious failing, as it has been the Court’s constant view that unrecorded detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of a record of such details as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Fedotov v. Russia, no. 5140/02, § 78, 25 October 2005; Menesheva v. Russia, no. 59261/00, § 87, ECHR 2006‑III; and Belousov v. Russia, no. 1748/02, § 72, 2 October 2008). In the instant case the Court has already concluded that as of 10.30 a.m. on 25 May 2005 the applicant was under the control of the Service officers. Whilst acknowledging that the record of her provisional arrest was drawn up some four hours later, the Court nonetheless observes that that document indicated the applicant’s arrest time as 3 p.m. The lack of a proper record of the applicant’s arrest is therefore sufficient for the Court to hold that her confinement for that time was in breach of Article 179 of the CCP (paragraph 45 above), which provides that each investigative action must be documented, and contrary to the requirements implicit in Article 5 of the Convention for the proper recording of deprivations of liberty (see, mutatis mutandis, Anguelova v. Bulgaria, no. 38361/97, § 157, ECHR 2002-IV; Menesheva, cited above, §§ 87-89; and Belousov, cited above, § 73). Given the SBGS officers’ intentional omission to apply the relevant legislation correctly, the Court also finds that the applicant’s detention until 3 p.m. was “arbitrary” (see Mooren, cited above, § 78).

81. In the light of foregoing considerations, the Court holds that here has been a violation of Article 5 § 1 of the Convention on account of the applicant being deprived of her liberty from 10.30 a.m. to 3 p.m. on 25 May 2005.
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Re: ECHR: Convention Violations and Case-Law

Postby LarryK » Sat Jul 11, 2015 1:46 am

Numbers, you have certainly been doing superb research here. I hope Amanda's lawyers are informed to draw on it in their actions with the ECHR. Amanda should be cleared completely of any criminal or civil liability, and be able to sue Italy for the maximum compensation when this is over.
The brain is not configured in a way that makes obedience through logical, language-based propositions possible during distress and suffering. -- James Wilder, "Neurotheology and the Life Model"
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sat Jul 11, 2015 11:36 pm

LarryK wrote:Numbers, you have certainly been doing superb research here. I hope Amanda's lawyers are informed to draw on it in their actions with the ECHR. Amanda should be cleared completely of any criminal or civil liability, and be able to sue Italy for the maximum compensation when this is over.


Thanks for your kind words. I too hope that this research will be useful; it can apply not only to Amanda's case, but also to other cases in Council of Europe countries where there have been similar abuses.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sat Jul 11, 2015 11:48 pm

A case relevant because it used an allegedly coerced confession obtained from a person treated as a witness, who subsequently retracted the confession, but who had disappeared before he could be subjected to court questioning in a co-defendant's trial. Thus the first person's statement was used as evidence, in a subtle way. The ECHR found this to be a violation of Convention Article 6.1, right to a fair trial.

LUTSENKO v. UKRAINE 30663/04 18/12/2008

44. With regard to the circumstances of the present case, the Court notes at the outset that Mr N.L.’s depositions, although read out at trial as part of the case-file, were not explicitly mentioned in the text of the judgment of 3 October 2003. The Court recalls, on the other hand, that the applicant was convicted, in particular, of aggravated murder “for profit” as opposed, for instance, to unqualified murder, governed by a different criminal statute. The trial court deemed it established that the applicant had had a pecuniary motive and noted that he had actually been paid USD 12,000 in two instalments of USD 2,000 and USD 10,000 respectively. In his cassation appeal, the applicant maintained that save for Mr N.L.’s depositions and in the light of other available evidence, the allegation of his pecuniary agreement with Mr N.L., the actual payment and the amounts referred to, remained mere speculation. Likewise, apart from the fact that Mr O.M. was wounded by several shots from a gun of an unknown make, Mr N.L.’s initial depositions were the only source of evidence that the applicant might actually have had a gun on him.

45. Responding to the applicant’s arguments, in its judgment of 11 March 2004 the Supreme Court explicitly referred to the contested depositions and noted that there was no reason to consider them inadmissible, as there had never been a conclusive finding that they had been given under duress. The Supreme Court further noted that the trial court had “properly assessed the evidence in its totality”, thus referring to the entire body of evidence examined at trial.

46. In light of the above, the Court considers that the confessional depositions by Mr N.L. were important for the purposes of securing the applicant’s conviction as it was formulated....

50. As regards the facts of the present case, the Court recalls that Mr N.L. gave his confessional depositions when questioned as a witness. In the absence of any conclusive evidence concerning his ill-treatment, the Court cannot establish beyond a reasonable doubt that he gave his testimony under duress. On the other hand, the Court notes that, unlike a suspect or an accused, who enjoyed a right to remain silent according to the applicable law, a witness was under obligation to reveal all information known to him on pain of criminal punishment. Moreover, unlike a suspect or an accused, a witness had no statutory right to consult a lawyer before the first interrogation.

51. Although the issue in the present case is not the conviction of the author of the confessions, but that of his co-accused, the Court finds that the underlying principles are broadly similar, and these statements, obtained in the absence of procedural guarantees, should have been treated with extreme caution, regard being had, in particular, to the fact that Mr N.L. had promptly retracted them, complaining before the competent authorities that he had given them under duress. Further, Mr N.L. had consistently denied his initial confessions not only during his first trial in open court, but yet at the stage of the pre-trial investigation.

52. Regard being had to the fact that, as noted above, the confessional depositions of Mr N.L., whom the applicant was unable to confront in an open court, given by him in the absence of procedural guarantees against self-incrimination, were used to a decisive degree for establishing the facts material for the qualification of the applicant’s actions, the Court finds that the rights of the defence were restricted to an extent which compromised the fairness of the proceedings as a whole.

53. There was, therefore, a breach of Article 6 § 1 of the Convention.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue Jul 14, 2015 8:55 am

There's a recent case (judgment published 9 Jul 2015) that has a thorough explanation of many general issues relating to violations of Article 3 (prohibition of torture or inhuman or degrading treatment or punishment). See the highlighted text in para. 68 and 69, each of which is relevant to the interrogations of Nov. 5/6 in the Knox-Sollecito case.

Because this is a long post, here is a topic outline of the information presented:

1. Treatment that ECHR considers as falling under Article 3; para. 68-70
2. Regarding 6-month time limit and duties of diligence by victims; para. 75-84
3. Responsibilities of State authorities; civil action by victim does not replace State action; para. 87-90
4. Need for an effective, independent investigation; para. 94-96
5. How substantive abuse is considered; para. 117-121

MAFALANI v. CROATIA 32325/13 09/07/2015

{Treatment that ECHR considers as falling under Article 3; para. 68-70}

68. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Costello-Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247-C; and Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006‑IX).

69. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV). Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance driving them to act against their will or conscience(see, for example, Stanev v. Bulgaria [GC], no. 36760/06, § 203, ECHR 2012).

70. Where a person is injured while in detention or otherwise under the control of the police, any such injury will lead to a strong presumption that the person was subjected to ill-treatment, which gives rise to an issue under Article 3 of the Convention (see, inter alia, Butolen v. Slovenia, no. 41356/08, § 84, 26 April 2012).

{Regarding 6-month time limit and duties of diligence by victims; para. 75-84}

75. The Court reiterates that the six-month time-limit provided for by Article 35 § 1 of the Convention has a number of aims. Its primary purpose is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 39, 29 June 2012; and El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 135, ECHR 2012).

76. Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. However, where it is clear from the outset that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of. Article 35 § 1 cannot be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, the Court considers that it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date on which the applicant first became or ought to have become aware of those circumstances (see Keenan v. the United Kingdom (dec.), no. 27229/95, 22 May 1998, and Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001; and Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, §§ 259-260, ECHR 2014 (extracts)).

77. The Court has already held that, in cases concerning an investigation into ill-treatment, the obligation of diligence incumbent on applicants contains two distinct but closely linked aspects: on the one hand, the applicants must contact the domestic authorities promptly concerning progress in the investigation – which implies the need to apply to them with diligence, since any delay risks compromising the effectiveness of the investigation – and, on the other, they must lodge their application promptly with the Court as soon as they become aware or should have become aware that the investigation is not effective (see Mocanu and Others, cited above, § 264).

78. The first aspect of the duty of diligence – that is, the obligation to apply promptly to the domestic authorities – must be assessed in the light of the circumstances of the case. In this regard, the Court has held that applicants’ delay in lodging a complaint is not decisive where the authorities ought to have been aware that an individual could have been subjected to ill-treatment – particularly in the case of assault which occurs in the presence of police officers – as the authorities’ duty to investigate arises even in the absence of an express complaint (see Velev v. Bulgaria, no. 43531/08, §§ 59‑60, 16 April 2013). Nor does such a delay affect the admissibility of the application where the applicant was in a particularly vulnerable situation, having regard to the complexity of the case and the nature of the alleged human rights violations at stake, and where it was reasonable for the applicant to wait for developments that could have resolved crucial factual or legal issues (see El Masri, cited above, § 142).

79. With regard to the second aspect of this duty of diligence – that is, the duty on the applicant to lodge an application with the Court as soon as he realises, or ought to have realised, that the investigation is not effective – the Court has stated that the issue of identifying the exact point in time that this stage occurs necessarily depends on the circumstances of the case and that it is difficult to determine it with precision (see Nasirkhayeva v. Russia (dec.), no. 1721/07, 31 May 2011). In particular, the Court has considered it indispensable that persons who wish to bring a complaint about the ineffectiveness or lack of an investigation before the Court do not delay unduly in lodging their application. However, so long as there is some meaningful contact with the authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay by the applicants will not generally arise (see Mocanu and Others, cited above, § 269).

80. The Court notes in the case at issue that following the applicant’s arrest there were clear indications of the possibility that violence had been used against him. In particular, the authorities must have been alerted of such a possibility on the basis of the applicant’s medical examination in the police station on 29 October 2008 (see paragraph 21 above) as well as the applicant’s statement to the investigating judge on 30 October 2008 where he complained that he was injured and stated that he had refused medical assistance in order to get out from the police station as soon as possible (see paragraph 30 above). Similarly, the findings of the applicant’s medical examination in Zagreb Prison Hospital on 3 November 2008 should have alerted the authorities of the possibility of use of violence against the applicant (see paragraphs 33-34 above).

81. In these circumstances, even without an express complaint from the applicant, a duty to investigate had already arisen at that early stage. This is so because Article 3 of the Convention requires an official investigation in cases where there are sufficiently clear indications that ill-treatment might have occurred (see Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, § 97, 3 May 2007; and Hassan v. the United Kingdom [GC], no. 29750/09, § 62, ECHR 2014). See further, J.L. v. Latvia (no. 23893/06, §§ 11-13 and 73-75, 17 April 2012) where the obligation to investigate arose, inter alia, on the basis of facts implied in the applicant’s complaints made during the criminal proceedings against him; and Pădureţ v. Moldova (no. 33134/03, §§ 63-64, 5 January 2010) where a duty of a prompt investigation arose on the basis of the applicant’s medical examination revealing the possibility of ill-treatment.

82. Accordingly, although it is true that the applicant started inquiring about the measures taken with regard to his alleged ill-treatment by the police in October 2011 and then lodged an official criminal complaint in February 2012, the Court does not find this delay decisive given that the domestic authorities were sufficiently aware of the possibility that he could have been subjected to ill-treatment and were under a duty to investigate his possible ill-treatment (see Velev, cited above, § 59; and Mocanu and Others, cited above, § 265). In this connection the Court has already acknowledged that the psychological effects of ill-treatment inflicted by State agents may also undermine victims’ capacity to complain about treatment inflicted on them, and may thus constitute a significant impediment to the right to redress of victims of torture and other ill-treatment. Such factors may have the effect of rendering the victim incapable of taking the necessary steps to bring proceedings against the perpetrator without delay (see Mocanu and Others, cited above, § 274).

83. The Court further notes that in February 2012, soon after he learnt that the authorities had failed to institute an investigation into his alleged ill‑treatment, the applicant lodged an official criminal complaint (see paragraph 44 above). These plausible allegations of ill-treatment triggering the authorities’ further investigation into the applicant’s case and thus reviving their procedural obligation under Article 3 of the Convention (see Brecknell v. the United Kingdom, no. 32457/04, §§ 70-71, 27 November 2007; and, by contrast, Finozhenok v. Russia (dec.), no. 3025/06, 31 May 2011). At that point there were sufficiently tangible indications that the investigation was progressing given that the applicant was on 20 February 2012 informed of the ongoing investigation during which several investigative measures were being taken (see paragraphs 45 and 46 above). Indeed, the final decision concerning the applicant’s official complaint was adopted on 3 March 2014 (see paragraph 46 above), while he had already on 6 May 2013 lodged an application with the Court.

84. In these circumstances, the Court considers that the application has not been lodged out of time. The Government’s objection must therefore be dismissed.

{Responsibilities of State authorities; civil action by victim does not replace State action; para. 87-90}

7. The Court reiterates that it falls, firstly, to the national authorities to redress any violation of the Convention. However, in cases of wilful ill-treatment by State agents in breach of Article 3, the Court has found that two measures are necessary to provide sufficient redress. Firstly, the State authorities must have conducted a thorough and effective investigation capable of leading to the identification and punishment of those responsible. Secondly, an award of compensation to the applicant is required where appropriate or, at least, the possibility of seeking and obtaining compensation for the damage which the applicant sustained as a result of the ill-treatment (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010; and Razzakov v. Russia, no. 57519/09, § 50, 5 February 2015).

88. In cases of wilful ill-treatment by State agents, a breach of Article 3 cannot be remedied only by an award of compensation to the victim because, if the authorities could confine their reaction to incidents of wilful ill-treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance, would be ineffective in practice (see Gäfgen, cited above, § 119; Vladimir Romanov v. Russia, no. 41461/02, § 78, 24 July 2008; and Razzakov, cited above, § 50).

89. In these circumstances, the Court considers that the applicant’s civil proceedings do not have a decisive effect on the admissibility of his application to the Court.

90. The Court thus rejects the Government’s objection.

{Need for an effective, independent investigation; para. 94-96}

94. When there is an arguable claim or credible assertion that an individual has been seriously ill-treated by the police in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, amongst many others, Gäfgen, cited above, § 117; and El-Masri, cited above, § 182; and Mocanu and Others, cited above, § 317).

95. An obligation to investigate is not an obligation of result, but of means (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002‑II). However, for an investigation to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see Barbu Anghelescu v. Romania, no. 46430/99, § 66, 5 October 2004; and Gharibashvili v. Georgia, no. 11830/03, § 61, 29 July 2008). This means not only a lack of hierarchical or institutional connection but also practical independence (see Mocanu and Others, cited above, § 320; and, mutatis mutandis, Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 177, 14 April 2015).

96. The investigation must also be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or otherwise base their decisions (see Mikheyev v. Russia, no. 77617/01, § 108, 26 January 2006; and Đurđević v. Croatia, no. 52442/09, § 84, ECHR 2011). The investigation must be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see El-Masri, cited above, § 183; Mocanu and Others, cited above, § 322; and, mutatis mutandis, Mustafa Tunç and Fecire Tunç, cited above, §§ 172-174).

{How substantive abuse is considered; para. 117-121}

117. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment (see Ramirez Sanchez v. France [GC], no. 59450/00, § 115, ECHR 2006‑IX).

118. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Labita, cited above, § 119; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; and El-Masri, cited above, § 195). Torture and inhuman or degrading treatment or punishment are prohibited in absolute terms, irrespective of the conduct of the person concerned (see Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996‑V). The nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 (see Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001; Gäfgen, cited above, § 87, and cases cited therein).

119. The Court reiterates that where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see, among other authorities, Selmouni, cited above, § 87). The same principle applies to alleged ill-treatment resulting in injury which takes place in the course of an applicant’s arrest (see Klaas v. Germany, 22 September 1993, §§ 23-24, Series A no. 269; Rehbock, cited above, §§ 68-78; and Mikiashvili v. Georgia, no. 18996/06, § 69, 9 October 2012).

120. Article 3 does not prohibit the use of force by police officers during an arrest. Nevertheless, the use of force must be proportionate and absolutely necessary in the circumstances of the case (see, among many other authorities, Altay v. Turkey, no. 22279/93, § 54, 22 May 2001). In this regard, it is of importance for instance whether there is reason to believe that the person concerned would resist arrest or abscond, cause injury or damage or suppress evidence (see Raninen v. Finland, 16 December 1997, § 56, Reports 1997 VIII; and Gutsanovi v. Bulgaria, no. 34529/10, § 126, ECHR 2013 (extracts)). However, any recourse by agents of the State to physical force against a person which has not been made strictly necessary by his or her own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Rachwalski and Ferenc v. Poland, no. 47709/99, § 59, 28 July 2009). This strict proportionality test has also been applied by the Court in situations where the individuals concerned were already in the hands of the law enforcement agencies (see, for example, Gladović v. Croatia, no. 28847/08, § 37, 10 May 2011).

121. Furthermore, where it can be assumed that some of an applicant’s injuries were caused at the time of his arrest, the Court must determine whether they were the result of force strictly necessary to subdue him. The burden to show that this was the case is on the Government (see Lenev, cited above, § 113, and cases cited therein).
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Jul 23, 2015 5:54 pm

I think it would be educational to see a communicated case from the ECHR to a respondent country, in part to see the balance of generality and specificity that may be found in at least the first set of ECHR questions.

The following is a recent case against Russia. It has some similarities in the complaints to those which I suspect Amanda has lodged against Italy, such as violations of Convention Article 3 and 6.1 with 6.3c. The alleged mistreatment of the suspect in the Russian case is much more physically abusive, however. I have selected a Russian case in part because these are usually communicated in English, while the Italian cases are usually communicated in French.

FIRST SECTION

Application no. 5659/10
Aleksey Valeryevich REZNIKOV
against Russia
lodged on 30 December 2009

STATEMENT OF FACTS

The applicant, Mr Aleksey Valeryevich Reznikov, is a Russian national, who was born in 1985 and is serving a prison term in the Krasnodar Region.

The facts of the case, as submitted by the applicant, may be summarised as follows.

In the evening on 2 July 2008 the applicant was arrested by police officers E., N. and A., who wore plain clothes. He was then taken to Tsentralnyy police station in the town of Krasnodar. During his transport the applicant sustained blows to the back of his head and his sides.

In the police station officer E. stroke {struck?} the applicant on his left cheek. Then this and other officers inflicted numerous blows to the applicant’s head. Officer N. hit him on his chest. All this time the applicant remained handcuffed. He then received several blows to his sides and arms. An electroshock was used against him (under his right knee and then to his back, loin and fingers).

Allegedly, the applicant was forced to make a confession in relation to a criminal offence (causing bodily injuries resulting in the victim’s death). Allegedly, he was then taken to the crime scene and was told the details of the events.

It appears that the applicant was then taken back to the police station. Allegedly, he had to sleep, being seated in a chair to which he remained handcuffed during the night.

On 3 July 2008 a peace justice sentenced the applicant to ten days of administrative detention for resisting the arrest (Article 19.3 of the Code of Administrative Offences).

On 3 July 2008 the applicant made a confession (явка с повинной).

At or around 5 p.m. on 3 July 2008 the applicant had an interview with investigator P. It appears that a lawyer was present during the interview.

On 8 July 2008 the applicant was examined by a forensic medical expert, who recorded several injuries on the applicant’s body. It appears that the applicant told the expert that he had fallen off his motorcycle five days before. It also appears that police officers were present during this interview.

On 11 July 2008 the applicant lodged a complaint before the Krasnodar Investigations Department, alleging ill-treatment.

By a decision of 14 July 2008 an investigator of this Department refused to institute criminal proceedings against the police officers.

On 16 July 2008 the applicant’s mother lodged a complaint with the Tsentralnyy district prosecutor.

On 25 August 2008 the decision of 14 July 2008 was quashed. On the same day, a new refusal to prosecute was issued.

The applicant sought judicial review of the refusal. On 8 October 2008 the Pervomayskiy District Court of Krasnodar declared it unlawful.

On 3 November 2008 a new refusal was issued. It was annulled on 20 November 2008 by the supervising officer.

On an unspecified date, the applicant was interviewed by the officer who carried out the inquiry into his ill-treatment complaint.

On an unspecified date, the criminal case against the applicant was submitted for trial before the District Court.

By judgment of 4 May 2009 the District Court convicted the applicant of causing bodily injuries resulting in the victim’s death. The applicant was sentenced to nine years’ imprisonment. The court relied on the applicant’s admission made after the arrest and the interview record with the investigator. The court declared this evidence admissible, referring to the testimonies by investigator P. and three arresting officers, who all affirmed that no ill-treatment had been inflicted on the applicant.

On 5 May 2009 an investigator issued a new refusal to prosecute the police officers.

On 15 July 2009 the Krasnodar Regional Court upheld the judgment against the applicant. The appeal court stated that the applicant had been informed of his right to remain silent; he had then been interviewed in the presence of a lawyer; they had not raised (during the interview) any allegation of ill-treatment.

On 20 July 2009 the supervising officer annulled the refusal of 5 May 2009.

On 22 July 2009 an investigator issued a new refusal to prosecute on account of the absence of a corpus delicti of the crimes under Articles 285 (excessive exercise of power), 286 (abuse of power) and 302 (compulsion to testify) of the Criminal Code.

Following another resumption of the inquiry, on 7 May 2010 an investigator issued a refusal to prosecute under Articles 285 and 286 of the Criminal Code.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was tortured in a coercive environment and that there was no effective investigation.

The applicant also complains under Article 6 of the Convention that he was convicted with reference to his confession obtained under torture.

QUESTIONS TO THE PARTIES

1.1. Was there a violation of Article 3 of the Convention on account of the alleged torture?



In addressing the above question the parties are requested to deal, inter alia, with the following points:



(a) Once in the hands of the authorities:

(i) Was the applicant informed of his rights? If so, when, and what rights was he informed about? What was the applicant’s procedural status?

(ii) Was he given the possibility of informing a family member, friend, etc. about his detention and his location and, if so, when?

(iii) Was he given access to a lawyer and, if so, when?

(iv) Was he given access to a doctor and, if so, when and was his medical examination conducted out of the hearing and out of sight of police officers and other non‑medical staff?



(b) Where was the applicant held between 2 and 4 July 2008? Was the applicant given access to a lawyer during this period of time (please, submit the relevant documents)?



1.2. Did the applicant’s allegations give rise to an effective investigation? In particular:



(a) When did the authorities become aware or ought to be aware of the presence of injuries on the applicant’s body? Did the arresting officers make reports concerning use of force during the applicant’s arrest? When did the authorities start a preliminary inquiry (доследственная проверка)?



(b) Was a forensic medical examination (судебно-медицинская экспертиза) carried out in order to establish, inter alia, harm to the applicant’s health and the possible origin and time of infliction of his injuries? Was it carried out speedily?



(c) Was the effectiveness of the inquiry undermined in the absence of a decision to initiate criminal proceedings (возбуждение уголовного дела) in reply to the applicant’s allegations (see Lyapin v. Russia, no. 46956/09, §§ 129-140, 24 July 2014)?



(d) Was the effectiveness of the inquiry adversely affected by narrowing its scope to the crimes under Articles 285 and 286 of the Criminal Code rather than under its other provisions directly relating to causing bodily harm, for instance?



(e) Which officers from which public authorities were involved in the inquiry into the applicant’s complaints of ill-treatment? Were they independent of the persons who were allegedly implicated in the applicant’s ill‑treatment? In particular, was there hierarchical, logistical, organisational or another interdependence between the inquiring authorities, on one hand, and officers E., N. and A. and investigator P., on the other? What operational and other activities did they carry out in the course of the above inquiry?



(f) Did the authorities provide a plausible explanation for the applicant’s injuries?



Having regard to Article 38 of the Convention, the respondent Government are requested to submit a copy of the file(s) relating to the preliminary inquiry in relation to the applicant’s allegations of ill-treatment; the applicant’s confession statement, the interview record of 3 July 2008 and the record of the crime scene inspection.



2. Was there a violation of Article 6 of the Convention on account of the use made of the applicant’s confession statement (явка с повинной) and his admissions made during the interview and the crime scene inspection on 3 July 2008? Were the applicant’s right to remain silent and the privilege against self-incrimination violated in the present case?
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sun Jul 26, 2015 12:47 am

An argument made by some is that Amanda Knox somehow "waived" her right to a lawyer during the interrogation. One cannot casually "waive" one's right to a Convention right, according to the ECHR.

Firstly, there is no document from the interrogation signed by Knox stating she was waiving her right to a lawyer. Secondly, there is no document signed by Knox from the interrogation stating that she had been informed of her rights to remain silent and not to incriminate herself, or of her responsibilities if she were to incriminate someone else. These warnings are required by Italian CPP Article 64. The Italian courts, including the CSC, recognized that there were violations of Italian procedural law in obtaining her statements and limited their use, but failed to exclude their use entirely, in violation of CPP Article 191 para. 1. CPP Art. 191 para. 1 states: Evidence gathered in violation of the prohibitions set by law shall not be used.

In terms of ECHR case-law, a person may not waive the benefit of representation of a lawyer during an interrogation or at any stage of a proceeding without full knowledge of the possible consequences, and without provision of minimum safeguards to protect their rights.

ECHR statements on waivers include:

OGORODNIK v. UKRAINE 29644/10 05/02/2015

104. Lastly, the Court reiterates that any waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate with the waiver’s importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006‑II).

SEJDOVIC v. ITALY [GC] 56581/00 01/03/2006

86. Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Poitrimol, cited above, § 31). Furthermore, it must not run counter to any important public interest (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A).

{emphasis added}
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Wed Aug 12, 2015 11:39 pm

An ECHR case with some potentially relevant parallels to the AK ECHR case on calunnia:

IUSTIN ROBERTINO MICU v. ROMANIA 41040/11 13/01/2015

1. The ECHR found a violation of Article 3 in this case. The Romanian authorities kept Micu, a diabetic, in custody during an initial period of less than one day (from about 8:40 am to about 10:00 pm) for investigational purposes including interrogation. While Micu was provided with his insulin and related supplies, he was denied food until 10:00 pm. For diabetics, balancing of food intake and insulin is important to maintain blood sugar concentration in a normal range.

74. Given the scarcity and contradictory nature of the available evidence, the Court cannot speculate as to the exact causes for the applicant’s physical condition on the evening of 9 March 2010 or whether his own behaviour – in failing to inform the police officers about his illness and the need for his treatment kit when they left his workplace – had contributed decisively to it. However, given the nature of the applicant’s illness and the absence of any conclusive evidence submitted by the Government that the applicant was provided with food prior to 10 p.m., the Court considers that this factor appears also to have played a role with regard to the applicant’s physical condition.

75. In the circumstances, including the applicant’s illness, the Court finds that the treatment the applicant was subjected to on 9 March 2010 prior to his remand in police custody exceeded the inherent and inevitable suffering caused by the legal proceedings and questioning related to the case.

76. It follows that there has been a violation of Article 3 of the Convention.


This ruling by the ECHR raises the issue of whether denial of toilet facilities, in particular to a menstruating woman being interrogated, would be considered by ECHR to be a violation of Article 3 (inhuman or degrading treatment). Similarly, the issue of whether subjecting a person to many hours of questioning or police contact over several days followed by an all-night interrogation would be considered by ECHR to be a violation of Article 3 (inhuman or degrading treatment).

Another issue brought out in the Micu case is the status of an individual who voluntarily accompanies police, who have a warrant for his appearance, to a police station and then remains at the police station. Is the individual free to leave after certain formalities are concluded? The ECHR found in the Micu case that the individual was not free to leave, despite the claim to the contrary of the Romanian government, since he was essentially guarded by two police officers and kept in an office with a total of five police officers, and not authorized by the police to leave. Thus, Amanda Knox was similarly not free to leave the Perugian police station at will while she was being interrogated on Nov. 5/6, 2007.

89. The Court further observes that the Government contended that the applicant accompanied the police officers willingly to the N.A.D.’s office and that they did not use force against him. In this connection, the Court notes that the applicant was guarded by police officers continuously and that there is no evidence in the file to suggest that applicant would have been allowed to leave of his own free will or that he had been notified that he could do so. It also notes that the Government have not contested the applicant’s allegations that at the N.A.D.’s office he had been continuously guarded by two armed police officers and had been kept in an office where there were a total of five police officers. The Court therefore considers that the applicant was under the authorities’ control throughout the entire period, and concludes that he was deprived of his liberty within the meaning of Article 5 § 1 of the Convention.


The ECHR found a violation of Article 5.1 (right to liberty) in the Micu case because Micu was not detained in accordance with the provisions of Romanian law. Similarly, it may be argued that Knox and Sollecito were not detained in accordance with Italian law and/or the Convention.

96. The Court considers that the above circumstances disclose that the applicant was not deprived of his liberty in accordance with a procedure prescribed by domestic law, which renders the deprivation of the applicant’s liberty from 8.40 a.m. to 9.15 p.m. on 9 March 2010 incompatible with the requirements of Article 5 § 1 of the Convention.

97. There has therefore been a violation of Article 5 § 1 of the Convention.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Aug 20, 2015 4:34 am

The issues regarding the Italian authorities' unjustified disclosure of Amanda Knox's private writings, her private life, private conversations, and their false statements about her character and private actions, and similarly with respect to Raffaele Sollecito's private writings and private life and conversations, may be considered violations of Convention Article 8:

ARTICLE 8
Right to respect for private and family life

1. Everyone has the right to respect for his private and family
life, his home and his correspondence.

2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
national security, public safety or the economic wellbeing of the
country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms.

ECHR case-law does provide precedent for considering leaks from a prosecution case-file or from the State's other information, whether true or false, of a suspect's or accused's private life, as a violation of Convention Article 8.

One example of the ECHR finding that leaks of information from a case-file is a violation of Article 8 is:

Apostu v. Romania 22765/12 03/02/2015 {from the legal summary:}

Article 8

Article 8-1

Respect for private life

Leak of information from criminal investigation file to the press: violation

Facts – In 2011 the applicant, a former mayor, was placed in pre-trial detention on suspicion of corruption and forgery. Before he was committed to stand trial, several newspapers published information and documents from the investigation file, quoting extracts from intercepted telephone conversations and referring to aspects of the applicant’s private life unrelated to the trial. The criminal proceedings against the applicant were still pending at the time of the European Court’s judgment.

Law – Article 8: Excerpts from the prosecution file concerning the applicant’s case had become public before the beginning of the adversarial phase of the proceedings and their content had put the applicant in an unfavourable light, giving the impression that he had committed crimes. Moreover, parts of the telephone conversations of a strictly private nature had not served to advance the criminal prosecution and their publication had thus not corresponded to a pressing social need. The leak of that information by the authorities thus constituted an interference with the applicant’s right to respect for his private life.

Under the domestic law, public access to information contained in a criminal case file was possible only after the case had been lodged with a court but even then it was limited and subject to judicial control. However, in the applicant’s case the possibility for a judge to assess whether a piece of information should be disclosed to the public had been impaired because it had already been leaked to the press. The respondent State had thus failed to provide safe custody of the information in their possession in order to secure the applicant’s right to respect for his private life or to offer him any means of redress once the breach of his rights had occurred.

Conclusion: violation (unanimously).


A violation of Article 8 in these circumstances is not, as I understand ECHR case-law, nullified by the acquittal of a defendant. That is, the acquitted person remains a victim of the Article 8 violation. In contrast, violations of Convention Article 6 are, in general, nullified by acquittal if the State acknowledges the violations and compensates the former victim.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Aug 20, 2015 9:26 pm

For those interested in the ECHR, there is a communicated case, PODESCHI v. SAN MARINO 66357/14 communicated 10/07/2015, with a few parallels to the AKRS case. I point it out partly to show the generality of the questions ECHR asks when it communicates a case to the respondent country.

Podeschi is a politician who was active in San Marino. He was accused, with others, of money laundering and conspiracy by an investigating judge 23 June 2014, and arrested and detained in jail that day. He was allowed to consult with his attorney 25 June 2014 at 3 pm and appear before the investigating judge at 4 pm. A significant part of the case file was was classified and Podeschi and his lawyer were not allowed to review that part either before or after the June 25 hearing. Podeschi was remanded to detention in prison and for at least part of this detention he was kept in isolation without the usually allowed activities or hygenic facilities, allegedly without the legal authorization required by San Marino law. The remand detention was continued by subsequent decisions.

Here is the "bottom line" of the communication (note the reference to "equality of arms" and the information denied to the applicant in question 3):

COMPLAINTS

The applicant {Podeschi} complains under Article 3 about the conditions of his detention. Invoking Article 5 § 3 he also complains that he remained detained for an unlimited duration of time, given that the law did not provide for a time-limit, and that pending his detention, proceedings were taking an unreasonably long time, during which he had not been released. He further complains under Article 5 § 4 that he had repeatedly not had access to the relevant documentation to challenge his detention.

QUESTIONS TO THE PARTIES

1. Did the conditions of the detention facility amount (alone or in combination with other conditions) to inhuman and degrading treatment, contrary to Article 3 of the Convention?

2. Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention? Did the grounds given by the judicial authorities continue to justify the deprivation of liberty? Were such grounds “relevant” and “sufficient”, have the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Ilijkov v. Bulgaria, no. 33977/96, § 77, 26 July 2001; I.A. v. France, 23 September 1998, Reports 1998‑VII, § 102; and Contrada v. Italy, 24 August 1998, Reports 1998-V, § 54)? The parties should submit any further domestic decisions concerning the applicant’s detention which were delivered in 2015.

3. Was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article 5 § 4 of the Convention? In particular, was the principle of “equality of arms” (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999‑II) respected, in the light of the fact that, although the applicant repeatedly requested access to the evidence underlying the suspicion against him and his continued detention, he was not allowed to acquaint himself with the entirety of the relevant material of the investigation? Did the information to which the applicant was denied access have any bearing on the lawfulness of his detention?
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Aug 20, 2015 10:09 pm

This is the "equality of arms" citation in Podeschi v. San Marino (above post).

Question: Did AK & RS have the requisite equality of arms in their remand hearings, considering that apparently exculpatory information, including DNA profile evidence showing that Guede, and neither Sollecito nor Lumumba, was Kercher's rapist, was suppressed?

From NIKOLOVA v. BULGARIA 31195/96 25/03/1999 [GC]

58. The Court recalls that arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of the Convention, of their deprivation of liberty. This means that the competent court has to examine “not only compliance with the procedural requirements set out in [domestic law] but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention” (see the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, pp. 34-35, § 65).

A court examining an appeal against detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person (see the Sanchez-Reisse v. Switzerland judgment of 21 October 1986, Series A no. 107, p. 19, § 51; the Toth v. Austria judgment of 12 December 1991, Series A no. 224, p. 23, § 84; and the Kampanis v. Greece judgment of 13 July 1995, Series A no. 318-B, p. 45, § 47). Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client’s detention (see the Lamy v. Belgium judgment of 30 March 1989, Series A no. 151, pp. 16-17, § 29). In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see the Assenov and Others judgment cited above, p. 3302, § 162).
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Fri Aug 28, 2015 12:36 am

ECHR case: PARRILLO v. ITALY [GC] 46470/11 27/08/2015

While the matter at issue in the above case has no relevance to the AK - RS case, there are statements from the ECHR in the judgment that are important to that case and to other cases in Italy. Here are some:

1. The Italian Constitutional Court (which is an entirely separate body from the CSC, the Supreme Court of Cassation) in its judgments nos. 348 and 349 of 24 October 2007 ruled that the European Convention of Human Rights was in a position above ordinary Italian laws but below the Italian Constitution. Therefore, it was incumbent on the judges of the ordinary courts to interpret domestic law in a manner compliant with the Convention on Human Rights and the Court’s case-law. The Italian Constitutional Court stated that where such an interpretation was impossible or the ordinary court had doubts as to the compatibility of domestic law with the Convention, it was bound to raise a question of constitutionality before it. (para. 88-89)

2. Regarding the possibility of an applicant bringing an appeal on the constitutionality of a law or (by my extension) an action of Italian authorities to the Constitutional Court (an argument used by the Italian government to claim that the applicant had not exhausted domestic remedies, as required by the Convention), the ECHR stated that it observes that generally litigants are not entitled to appeal directly to the Constitutional Court. Therefore, such an application cannot be a remedy whose exhaustion is required under the Convention (para. 101).

Perhaps the big issue for the AK - RS case from the above is the failure of the ordinary Italian courts to have interpreted Italian law and the actions of Italian authorities with respect to the Convention, as required by Italian Constitutional Court judgments nos. 348 and 349 of 24 October 2007.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Wed Sep 16, 2015 3:29 pm

"False Charges" & Article 5 (Right to liberty; no wrongful detention)

Relevant cases explicitly cite "false charges" as the basis for the ECHR to judge detentions as being in violation of Convention Article 5. There appear to be only 3 such cases:

Brega v Moldova 52100/08
Brega et al v Moldova 61485/08
Hyde Park et al v Moldova 18491/07

These are a series of cases in which Moldovan protesters were arrested on charges such as holding an unauthorized demonstration (which in fact had been authorized) or assaulting or insulting police (video evidence showed no such behavior on the part of the protesters).

I suggest that the arrests of Amanda and Raffaele were likewise based on false charges and were violations of Convention Article 5 (specifically, 5.1 for the initial arrest and detention.) The issue of being time-barred, I suggest, is overcome by the bad faith of the authorities. There does not seem to be a recognition of this violation of the Convention in the Marasca CSC panel MR, although there is the acknowledgement of investigative flaws;
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Re: ECHR: Convention Violations and Case-Law

Postby Hugh Jorgan » Thu Sep 17, 2015 4:05 pm

What the heck is the ECHR?
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Re: ECHR: Convention Violations and Case-Law

Postby Kohntarkosz » Thu Sep 17, 2015 10:49 pm

ECHR : European Court of Human Rights = CEDH : Cour Européenne des Droits de l'Homme.
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Re: ECHR: Convention Violations and Case-Law

Postby Hugh Jorgan » Mon Sep 21, 2015 1:56 pm

Kohntarkosz wrote:ECHR : European Court of Human Rights = CEDH : Cour Européenne des Droits de l'Homme.


Never heard of it. Why should anyone give a shit about it? Americans would never allow foreigners on some human rights panel to second guess its judges, why should Italy? Sure, the US pays lip service to the ideals of certain international organizations but we all know who's boss.
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Re: ECHR: Convention Violations and Case-Law

Postby roteoctober » Tue Sep 22, 2015 2:29 am

Hugh Jorgan wrote:
Kohntarkosz wrote:ECHR : European Court of Human Rights = CEDH : Cour Européenne des Droits de l'Homme.


Never heard of it. Why should anyone give a shit about it? Americans would never allow foreigners on some human rights panel to second guess its judges, why should Italy? Sure, the US pays lip service to the ideals of certain international organizations but we all know who's boss.


Because Italy has signed a treaty, indeed more than one: it has been a free choice of the Italian Republic to accept the authority of the ECHR.
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Re: ECHR: Convention Violations and Case-Law

Postby Hugh Jorgan » Tue Sep 22, 2015 2:32 am

roteoctober wrote:
Hugh Jorgan wrote:
Kohntarkosz wrote:ECHR : European Court of Human Rights = CEDH : Cour Européenne des Droits de l'Homme.


Never heard of it. Why should anyone give a shit about it? Americans would never allow foreigners on some human rights panel to second guess its judges, why should Italy? Sure, the US pays lip service to the ideals of certain international organizations but we all know who's boss.


Because Italy has signed a treaty, indeed more than one: it has been a free choice of the Italian Republic to accept the authority of the ECHR.


So did the UK but it turns out they're not shy about telling the ECHR to suck it whenever it suits them. Apparently, a lot of people in the UK are not fans of the ECHR and see it as a joke with incompetent judges.
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Re: ECHR: Convention Violations and Case-Law

Postby MichaelB » Tue Sep 22, 2015 3:19 am

delete
The stupid things Ergon says - THE BEST OF NASEER AHMAD: "Curatolo's testimony is one of the bedrock foundations of my beliefs in this case."
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Re: ECHR: Convention Violations and Case-Law

Postby roteoctober » Tue Sep 22, 2015 3:21 am

In Italy instead the ECHR is considered by many as the only hope of correcting the many wrongdoings of a faulty judicial system, go figure!
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Re: ECHR: Convention Violations and Case-Law

Postby LondonSupporter » Tue Sep 22, 2015 4:11 am

Hugh Jorgan wrote:
roteoctober wrote:
Hugh Jorgan wrote:
Kohntarkosz wrote:ECHR : European Court of Human Rights = CEDH : Cour Européenne des Droits de l'Homme.


Never heard of it. Why should anyone give a shit about it? Americans would never allow foreigners on some human rights panel to second guess its judges, why should Italy? Sure, the US pays lip service to the ideals of certain international organizations but we all know who's boss.


Because Italy has signed a treaty, indeed more than one: it has been a free choice of the Italian Republic to accept the authority of the ECHR.


So did the UK but it turns out they're not shy about telling the ECHR to suck it whenever it suits them. Apparently, a lot of people in the UK are not fans of the ECHR and see it as a joke with incompetent judges.


The European Convention on Human Rights was framed and drafted with significant British input. "British MP and lawyer Sir David Maxwell-Fyfe, the Chair of the Assembly's Committee on Legal and Administrative Questions, was one of its leading members and guided the drafting of the Convention." (from Wikipedia) It has become fashionable in recent years for some elements of the British media (principally the Daily Mail) to denigrate the Convention and the European Court although the UK is not one of the leading countries that breaches human rights. In Western Europe (west of former Iron Curtain) Italy is the chief culprit by some margin (surprise, surprise). Of course Italy, like any other member, could resign from the Convention and give two fingers to the court but in doing so it would be in breach of EU Membership as well. If you prefer the human rights approach of e.g. Iran or North Korea, maybe you should go and live there and quit posting on a forum where people are interested in justice i.e. convicting criminals and not framing innocent people.
"Life lived somehow for love is life never wasted." - Amanda Knox
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Re: ECHR: Convention Violations and Case-Law

Postby B_Real » Tue Sep 22, 2015 4:30 am

LondonSupporter wrote: Of course Italy, like any other member, could resign from the Convention and give two fingers to the court but in doing so it would be in breach of EU Membership as well. If you prefer the human rights approach of e.g. Iran or North Korea, maybe you should go and live there and quit posting on a forum where people are interested in justice i.e. convicting criminals and not framing innocent people.


Actually the EU and the ECHR are two different things.

You can be in the EU without being part of the ECHR treaty and you can be part of the ECHR without being in the EU, e.g. Ukraine, Turkey and Russia have signed up to the ECHR.
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Re: ECHR: Convention Violations and Case-Law

Postby LondonSupporter » Tue Sep 22, 2015 6:06 am

B_Real wrote:
LondonSupporter wrote: Of course Italy, like any other member, could resign from the Convention and give two fingers to the court but in doing so it would be in breach of EU Membership as well. If you prefer the human rights approach of e.g. Iran or North Korea, maybe you should go and live there and quit posting on a forum where people are interested in justice i.e. convicting criminals and not framing innocent people.


Actually the EU and the ECHR are two different things.

You can be in the EU without being part of the ECHR treaty and you can be part of the ECHR without being in the EU, e.g. Ukraine, Turkey and Russia have signed up to the ECHR.


Yes I know that, they are different bodies, but signing up to the European Convention/European Court of Human Rights is now a requirement for EU members. If an EU member resigns from the European Convention it will be in breach of an EU treaty and could theoretically be evicted from the EU.

You can sign up to the ECHR without being in the EU, but you cannot be in the EU without signing up to the ECHR as well.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue Sep 22, 2015 6:34 am

LondonSupporter wrote:
B_Real wrote:
LondonSupporter wrote: Of course Italy, like any other member, could resign from the Convention and give two fingers to the court but in doing so it would be in breach of EU Membership as well. If you prefer the human rights approach of e.g. Iran or North Korea, maybe you should go and live there and quit posting on a forum where people are interested in justice i.e. convicting criminals and not framing innocent people.


Actually the EU and the ECHR are two different things.

You can be in the EU without being part of the ECHR treaty and you can be part of the ECHR without being in the EU, e.g. Ukraine, Turkey and Russia have signed up to the ECHR.


Yes I know that, they are different bodies, but signing up to the European Convention/European Court of Human Rights is now a requirement for EU members. If an EU member resigns from the European Convention it will be in breach of an EU treaty and could theoretically be evicted from the EU.

You can sign up to the ECHR without being in the EU, but you cannot be in the EU without signing up to the ECHR as well.


The EU is now a member of the Council of Europe, and thus bound to the ECHR.

All the States who have joined the Council of Europe and thus are bound to follow the judgments of the European Convention on Human Rights (the Convention) and the case-law of the ECHR have done so voluntarily, and are bound by solemn treaty.

Italy, the UK, and several other Western European countries are founding members of the Council of Europe and the ECHR.

The Italian Constitutional Court has stated in a decision that Italian courts must follow the Convention and ECHR case-law and must recognize that those laws are above Italian laws in the hierarchy of law.

For the Council of Europe States, the Convention may be considered roughly equivalent to the US Constitution to the individual USA States; it is a supreme law regarding human rights.
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Re: ECHR: Convention Violations and Case-Law

Postby Hugh Jorgan » Tue Sep 22, 2015 12:30 pm

LondonSupporter wrote:
Hugh Jorgan wrote:
roteoctober wrote:
Hugh Jorgan wrote:
Kohntarkosz wrote:ECHR : European Court of Human Rights = CEDH : Cour Européenne des Droits de l'Homme.


Never heard of it. Why should anyone give a shit about it? Americans would never allow foreigners on some human rights panel to second guess its judges, why should Italy? Sure, the US pays lip service to the ideals of certain international organizations but we all know who's boss.


Because Italy has signed a treaty, indeed more than one: it has been a free choice of the Italian Republic to accept the authority of the ECHR.


So did the UK but it turns out they're not shy about telling the ECHR to suck it whenever it suits them. Apparently, a lot of people in the UK are not fans of the ECHR and see it as a joke with incompetent judges.


The European Convention on Human Rights was framed and drafted with significant British input. "British MP and lawyer Sir David Maxwell-Fyfe, the Chair of the Assembly's Committee on Legal and Administrative Questions, was one of its leading members and guided the drafting of the Convention." (from Wikipedia) It has become fashionable in recent years for some elements of the British media (principally the Daily Mail) to denigrate the Convention and the European Court although the UK is not one of the leading countries that breaches human rights. In Western Europe (west of former Iron Curtain) Italy is the chief culprit by some margin (surprise, surprise). Of course Italy, like any other member, could resign from the Convention and give two fingers to the court but in doing so it would be in breach of EU Membership as well. If you prefer the human rights approach of e.g. Iran or North Korea, maybe you should go and live there and quit posting on a forum where people are interested in justice i.e. convicting criminals and not framing innocent people.


If you don't like me speaking my mind and asking questions, then perhaps it is YOU who is not a fan of human rights (which, BTW, include the right to free speech and free thought).

Some people in the UK are claiming the judges on the ECHR are incompetent. Apparently one of these judges did not even know what a 'precedent' was! Americans would never let some twit from Moldova or some such second guess US courts and, apparently, neither does the UK let the ECHR run roughshod over their courts (notwithstanding their membership). Why should Italy be any different?
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Wed Sep 23, 2015 11:08 pm

On ISF, Kauffer has posted an interesting link regarding the effects of the Salduz v. Turkey ECHR case on police, prosecutions, and judicial procedures in Europe. Kauffer also points out that the comments by Marion Isobel to the article in the link are informative. The article was published 26 April 2011.

https://www.opensocietyfoundations.org/ ... eps-europe

Here is an excerpt:

Case Watch: Salduz Fever Sweeps Europe
April 26, 2011 by Marion Isobel
Case Watch: Salduz Fever Sweeps Europe

In “Case Watch,” staff of the Open Society Justice Initiative provide quick-hit analysis of recent notable court decisions that relate to their work to advance human rights law around the world.

Something strange is happening in Europe. After years of inaction, governments are suddenly getting serious about arrest rights. Across the continent, many countries are grappling with how to reform rules on the treatment of suspects in police custody to ensure arrested people access to a lawyer before being questioned.

Why the unexpected enthusiasm? The answer, in a word, is “Salduz.”

In 2008, European Court of Human Rights issued a groundbreaking decision in case of Salduz v. Turkey. The court held that people detained at police stations have the right to access a lawyer. If people are interrogated by the police without getting the benefit of legal assistance, this could be a violation of their fundamental right to a fair trial.

Since 2008, the court has reiterated the Salduz standard time and time again, in a consistent line of jurisprudence. Furthermore, the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has also been vocal on this issue, stressing that access to a lawyer in the period immediately following arrest is a “fundamental safeguard against ill-treatment.”
....
Last year, the UK Supreme Court gave a warning that there is “no room for any escape from the Salduz ruling.” It seems that, one by one, European countries are realizing this.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Sep 28, 2015 11:41 am

CASE OF BOUYID v. BELGIUM [GC] 23380/09 28/09/2015

The ECHR has judged that Belgium violated the Convention rights, under Article 3, of the Bouyid brothers in that in two separate instances, a police officer slapped one of the Bouyid brothers while that person was in a police station for an identity check or other instance of police custody that was not a formal arrest. The slaps were considered instances of degrading treatment, which is prohibited by Convention Article 3. The violations were found in both the substantive and procedural branches: that is, the police were found to have committed the acts, and the Belgium authorities then failed to conduct an effective investigation into the Bouyid's allegations.

There are many ECHR statements in Bouyid relevant to the Amanda Knox case, and possibly to Raffaele Sollecito's questioning on Nov. 5/6 as well.

For example:

100. As the Court has pointed out previously (see paragraph 88 above), where an individual is deprived of his or her liberty or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by the person’s conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention.

101. The Court emphasises that the words “in principle” cannot be taken to mean that there might be situations in which such a finding of a violation is not called for, because the above-mentioned severity threshold (see paragraphs 86-87 above) has not been attained. Any interference with human dignity strikes at the very essence of the Convention (see paragraph 89 above). For that reason any conduct by law-enforcement officers vis-à-vis an individual which diminishes human dignity constitutes a violation of Article 3 of the Convention. That applies in particular to their use of physical force against an individual where it is not made strictly necessary by his conduct, whatever the impact on the person in question.


The text of the judgment is on:
http://hudoc.echr.coe.int/eng

This was an important case which has been given a webcast:

http://echr.coe.int/sites/search_eng/pages/search.aspx
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Sep 28, 2015 12:01 pm

Here is another relevant quote from Bouyid v Belgium [GC] 23380/09:

86. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, cited above, § 162; Jalloh, cited above, § 67; Gäfgen, cited above, § 88; El-Masri, cited above, § 196; and Svinarenko and Slyadnev, cited above, § 114). Further factors include the purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it (compare, inter alia, Aksoy v. Turkey, 18 December 1996, § 64, Reports 1996‑VI; Egmez v. Cyprus, no. 30873/96, § 78, ECHR 2000‑XII; and Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004; see also, among other authorities, Gäfgen, cited above, § 88; and El-Masri, cited above, § 196), although the absence of an intention to humiliate or debase the victim cannot conclusively rule out a finding of a violation of Article 3 (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999‑IX; and Svinarenko and Slyadnev, cited above, § 114). Regard must also be had to the context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions (compare, for example, Selmouni, cited above, § 104; and Egmez, cited above, § 78; see also, among other authorities, Gäfgen, cited above, § 88).

87. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3 (see, among other authorities, Vasyukov v. Russia, no. 2974/05, § 59, 5 April 2011; Gäfgen, cited above, § 89; Svinarenko and Slyadnev, cited above, § 114; and Georgia v. Russia (I), cited above, § 192). It should also be pointed out that it may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others (see, among other authorities, Tyrer v. the United Kingdom, 25 April 1978, § 32, Series A no. 26; and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 220, ECHR 2011).

88. Furthermore, in view of the facts of the case, the Court considers it particularly important to point out that, in respect of a person who is deprived of his liberty, or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 (see, among other authorities, Ribitsch, cited above, § 38; Mete and Others, cited above, § 106; and El-Masri, cited above, § 207).

89. The word “dignity” appears in many international and regional texts and instruments (see paragraphs 45-47 above). Although the Convention does not mention that concept – which nevertheless appears in the Preamble to Protocol No. 13 to the Convention, concerning the abolition of the death penalty in all circumstances – the Court has emphasised that respect for human dignity forms part of the very essence of the Convention (see Svinarenko and Slyadnev, cited above, § 118), alongside human freedom (see C.R. v. the United Kingdom, 22 November 1995, § 42, Series A no. 335‑C; and S.W. v. the United Kingdom, 22 November 1995, § 44, Series A no. 335‑B; see also, among other authorities, Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002‑III).
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Sep 28, 2015 10:37 pm

The ECHR judged both substantive and procedural violations of Convention Article 3, for degrading treatment by the Belgian and failure to effectively investigate by the Belgian authorities.

I provided some information on the ECHR's views on the substantive issues in an earlier post. Here is some information on their views on the procedural issues:

Quote:
129. The investigation was therefore mainly confined to interviews of the police officers involved in the incidents by other police officers seconded to the investigation department of Committee P and the preparation by those officers of a report summarising the evidence gathered, once again, by police officers (the internal oversight department of the police district covering the applicants’ neighbourhood), which mainly described the “general behaviour” of the Bouyid family.

130. Furthermore, no reasons were provided for either the submissions of the Crown Prosecutor or the order by the Committals Division of the Brussels Court of First Instance discontinuing the case. Furthermore, in upholding that discontinuance order, the Indictments Division of the Brussels Court of Appeal drew almost exclusively on the aforementioned report concerning the behaviour of the Bouyid family and the denials of the officers charged, without assessing the credibility and seriousness of the applicants’ allegation that they had been slapped by the officers in question. It should also be noted that the Indictment Division’s judgment of 9 April 2008, which contains only a very brief reference to the medical certificate produced by the second applicant, makes no mention at all of the certificate produced by the first applicant.

131. These factors tend to indicate that the investigating authorities failed to devote the requisite attention to the applicants’ allegations – despite their being substantiated by the medical certificates which they had submitted for inclusion in the case file – or to the nature of the act, involving a law-enforcement officer slapping an individual who was completely under his control.

133. As the Court has emphasised on previous occasions, although there may be obstacles or difficulties which prevent progress in an investigation in a particular situation,a prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts(see, among other authorities, McKerr v. the United Kingdom, no. 28883/95, § 114, ECHR 2001‑III; and Mocanu and Others, cited above, § 323).
_______
In the above quote, I have highlighted statements that may be relevant to the Amanda Knox claim of violation of her Convention rights under Article 3 by Italy for convicting her of calunnia despite her allegations of abuse and coercion by the police in obtaining her statement.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Wed Sep 30, 2015 8:17 pm

There are several ways in which Amanda's interrogation and her conviction for calunnia based on her coerced statement violated ECHR case-law.

One should not under-estimate the ability of the ECHR to figure out that police or other authorities have committed official misconduct, including violations of Convention Article 3. Physical evidence on a person's body of mistreatment by the police is useful in such cases, but not necessary for the ECHR to conclude a violation of Article 3.

Here are some examples from ECHR case-law.

USHAKOV AND USHAKOVA v. UKRAINE 10705/12 18/06/2015

Ms Anna Mikhaylovna Ushakova (the second applicant) claimed that the police had pulled her hair, slapped her, and threatened her in order to coerce her to make a statement implicating her husband, Mr Sergey Viktorovich Ushakov (the first applicant), in the commission of a murder.

80. As regards the second applicant, the Court notes that indeed her examination on 2 July 2008 did not reveal any injuries. The Court does not consider, however, this fact alone to undermine the credibility of her ill-treatment allegation. Thus, the Court is well aware that there are methods of applying force which do not leave any traces on a victim’s body (see Boicenco v. Moldova, no. 41088/05, § 109, 11 July 2006). And, of course, the consequences of any intimidation, or indeed any other form of non-physical abuse, would in any event have left no visible trace (see Hajnal v. Serbia, no. 36937/06, § 80, 19 June 2012).

BOICENCO v. MOLDOVA 41088/05 11/07/2006

109. The fact that the applicant did not have bruises and other visible signs of ill-treatment on his body is not conclusive in the Court’s view. The Court is well aware that there are methods of applying force which do not leave any traces on a victim’s body.


HAJNAL v. SERBIA 36937/06 19/06/2012

78. According to the Court’s settled case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment,its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 88, ECHR 2010; Price v. the United Kingdom, no..33394/96, § 24, ECHR 2001-VII; Mouisel v. France, no. 67263/01, § 37, ECHR 2002-IX; and Jalloh v. Germany [GC], no. 54810/00, § 67, 11 July 2006).

79. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV).Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see Hurtado v. Switzerland, 28 January 1994, opinion of the Commission, § 67, Series A no. 280, and Wieser v. Austria, no. 2293/03, § 36, 22 February 2007). Constant mental anxiety caused by the threat of physical violence and the anticipation of such, has likewise been deemed to go beyond the threshold of Article 3 (see Rodić and Others v. Bosnia and Herzegovina, no. 22893/05, § 73, 27 May 2008).

88. It is telling that on 17 August 2005 the applicant had declined to give a statement to the police, yet only a day later, on 18 August 2005, he allegedly decided of his own free will to confess to the numerous burglaries at issue....

89. Even assuming that the applicant had indeed had no visible injuries on 24 and 25 August 2005, as argued by the Government (see paragraph 75 above), a week had elapsed since his interrogation in the police station, meaning that, depending on their severity, the injuries could have healed in the interval. Of course, consequences of any intimidation, or indeed any other form of non-physical abuse, would in any event have left no visible trace.

92. In view of the above, the Court concludes that the applicant was physically abused on 17 August 2005 and was, at the very least, mentally coerced into giving his confession on 18 August 2005, events of those two days being inextricably linked to each other (see, mutatis mutandis, Milanović v. Serbia, no. 44614/07, § 78, 14 December 2010). Indeed, on 22 March 2006 the Municipal Court itself concluded that the applicant’s repeated arrests amounted to police harassment aimed at obtaining his confession.
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Re: ECHR: Convention Violations and Case-Law

Postby Hugh Jorgan » Fri Oct 02, 2015 10:11 pm

Numbers wrote:There are several ways in which Amanda's interrogation and her conviction for calunnia based on her coerced statement violated ECHR case-law.

One should not under-estimate the ability of the ECHR to figure out that police or other authorities have committed official misconduct, including violations of Convention Article 3. Physical evidence on a person's body of mistreatment by the police is useful in such cases, but not necessary for the ECHR to conclude a violation of Article 3.

Here are some examples from ECHR case-law._ _ _


At the risk of drawing attention to the painfully obvious (you've never set foot in law school much less worked as an ECHR lawyer), why don't you try to walk us through the process of how, exactly, the ECHR determines who to believe: the state who asserts police never slapped the accused; or the accused who claims to have been slapped?
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Re: ECHR: Convention Violations and Case-Law

Postby pmop57 » Sat Oct 03, 2015 6:43 am

Hugh Jorgan,
Even that your question was not addressed to me reading the way you formulate your requests is leading me to advice you to make the necessary research of how the ECHR deals with the cases by your own. The internet site of the ECHR is extremely well done and sufficiently exhaustive to certainly provide you with all the necessary information to assist you answering your eventual questions!
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Mon Oct 05, 2015 12:15 am

How the ECHR determines the non-pecuniary component of just satisfaction (compensation) when if finds a violation of the Convention:

VARNAVA AND OTHERS v. TURKEY 16064/90 16065/90 16066/90.. 18/09/2009

224. The Court would observe that there is no express provision for non-pecuniary or moral damage. Evolving case by case, the Court’s approach in awarding just satisfaction has distinguished situations where the applicant has suffered evident trauma, whether physical or psychological, pain and suffering, distress, anxiety, frustration, feelings of injustice or humiliation, prolonged uncertainty, disruption to life, or real loss of opportunity (see, for example, Elsholz v. Germany [GC], no. 25735/94, § 70, ECHR 2000‑VIII; Selmouni v. France [GC], no. 25803/94, § 123, ECHR 1999‑V; and Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 12, ECHR 2000‑IX) and those situations where the public vindication of the wrong suffered by the applicant, in a judgment binding on the Contracting State, is a powerful form of redress in itself. In many cases where a law, procedure or practice has been found to fall short of Convention standards this is enough to put matters right (see, for example, Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 120, ECHR 2002‑VI; Saadi v. Italy [GC], no. 37201/06, § 188, ECHR 2008; and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 134, ECHR 2008). In some situations, however, the impact of the violation may be regarded as being of a nature and degree as to have impinged so significantly on the moral well-being of the applicant as to require something further. Such elements do not lend themselves to a process of calculation or precise quantification. Nor is it the Court’s role to function akin to a domestic tort mechanism court in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non-pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage; they are not, nor should they be, intended to give financial comfort or sympathetic enrichment at the expense of the Contracting Party concerned.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Oct 08, 2015 6:58 am

An ECHR case from Russia with some parallels to the AK - RS case regarding a suspect questioned as a witness and subjected to inhuman or degrading treatment during interrogation (although the treatment may be more severe):

FARTUSHIN v. RUSSIA 38887/09 08/10/2015

50. The Court emphasises the fundamental importance of the guarantees contained in Article 5 of the Convention for securing the right of individuals in a democracy to be free from arbitrary detention by the authorities. It has reiterated in that connection that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law, but must equally be in keeping with the very purpose of Article 5, namely, to protect the individual from arbitrariness. In order to minimise the risks of arbitrariness, Article 5 provides a corpus of substantive rights intended to ensure that the act of deprivation of liberty be amenable to independent judicial scrutiny and to secure the accountability of the authorities for that measure (see Kurt v. Turkey, 25 May 1998, §§ 122‑23, Reports of Judgments and Decisions 1998‑III, and Fatma Akaltun Fırat v. Turkey, no. 34010/06, § 29, 10 September 2013). The requirements of Article 5 §§ 3 and 4 with their emphasis on promptness and judicial control assume particular importance in this context (see Kurt, cited above, § 123). Prompt judicial intervention may lead to the detection and prevention of serious ill‑treatment which violates the fundamental guarantees contained in Article 3 of the Convention (see Aksoy v. Turkey, 18 December 1996, § 76, Reports 1996-VI). What is at stake is both the protection of the physical liberty of individuals as well as their personal security in a context which, in the absence of safeguards, could result in subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection (see Kurt, cited above, § 123).

51. The Court observes that the police had information that the applicant had allegedly been involved in the theft which they were investigating. Police officer V. requested the applicant by telephone to come to the police station for questioning. The applicant arrived at the police station at V.’s request at 2 p.m. on 5 May 2008. That fact is confirmed by the police station logbook and the witnesses (see paragraphs 8 and 24 above). The next trace of the applicant’s presence at the police station can be found in the record of his questioning by the investigator as a witness in the theft case (see paragraph 11 above) at midday the following day. According to the complaints lodged with the authorities by the applicant’s wife, his mother and his lawyer, the applicant was not released after entering the police station on 5 May 2008 (see paragraphs 10 and 19 above). The record of his arrest as a suspect was drawn up by the investigator at 8.20 p.m. on 6 May 2008 (see paragraph 13 above). The Court also observes that in the course of the official inquiry into the applicant’s criminal complaint of unlawful detention, the investigative authorities did not acknowledge that he had been detained continuously at the police station from 2 p.m. on 5 May 2008 until 8.20 p.m. on 6 May 2008, and their decision was fully endorsed by the domestic courts (see paragraph 30 above).

52. Having noted the Government’s acknowledgment of a violation of Article 5 in the present case, the Court finds it established that the applicant was detained at the police station continuously from 2 p.m. on 5 May 2008 until 8.20 p.m. on 6 May 2008, that is, for more than thirty hours. During that time he was interviewed by the police about his alleged involvement in the theft and was subjected to inhuman and degrading treatment in order to force him to confess to the theft (see paragraph 43 above).

53. The Court considers that although the applicant was detained from the very beginning as a suspect in a criminal case, his detention was not recorded as such until 8.20 p.m. on 6 May 2008. The lack of any acknowledgment or records of his detention as a suspect in the preceding period led to his being deprived of access to a lawyer and all other rights of a suspect, which meant that he was left completely at the mercy of those holding him. As such, he was vulnerable not only to arbitrary interference with his right to liberty but also to ill-treatment (see paragraph 43 above).

54. The Court finds that the applicant’s unrecorded detention was a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and was incompatible with the requirement of lawfulness and with the very purpose of Article 5. There has accordingly been a violation of this Article (see Belevitskiy v. Russia, no. 72967/01, §§ 82-85, 1 March 2007, and Aleksandr Sokolov v. Russia, no. 20364/05, §§ 70‑73, 4 November 2010, in which the Court found a violation in comparable circumstances involving unrecorded detention of persons suspected of having committed criminal offences; see also El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 236-237, ECHR 2012).
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Oct 08, 2015 11:14 pm

ECHR case: TURBYLEV v. RUSSIA 4722/09 06/10/2015

In this case, the ECHR found that Russia in its police and judicial procedures had violated the Convention rights of Turbylev, who was suspected, charged, and convicted of robbing a jewelry store along with others.

The Convention articles violated were Article 3 (inhuman or degrading treatment, substantive and procedural) and Article 6.1 with 6.3c (conviction based on a confession coerced during an interrogation without a lawyer).

This case illustrates strong features of ECHR jurisprudence: its consistent conformance to precedence, and it adaptation to new cases with new facts to expand precedence. A new feature in this case was that the Russian police coerced Turbylev to sign a "voluntary" statement of "surrender and confession" during the initial interrogation and mistreatment (which included medically observable injuries to his head, back, and knees; he was punched, kicked, and his head slammed into a wall). On the day after giving this statement, and his first interrogation in the presence of his lawyer Turbylev repudiated the statement of surrender and confession, stating that he had made it because of coercion and mistreatment.

The statement of surrender and confession has a special status under Russian procedural law, in that it is accepted as a confession by the suspect without a lawyer's counsel. It may be somewhat parallel to the "spontaneous statement" encountered in Italian procedural law in the AK - RS case. There are similarities in the abuse of Italian procedural laws in the justifications by the Italian courts of their use of Amanda Knox's interrogation statements and statements during her custody without a lawyer in her conviction for calunnia of Patrick Lumumba.

However, the ECHR did not accept in the Turbylev case that the statement of surrender and confession was voluntary, nor did it accept that it was a knowing and valid waiver of legal counsel. Here are excerpts from the ECHR judgment regarding the Russian courts' use of the confession:

87. The Court notes, firstly, that no assessment was made by the trial court of the medical and witness evidence submitted by the applicant to support his objection on the ground of duress .... In relying on the police officers’ statements denying any wrongdoing on their part and on the internal police inquiry dismissing the applicant’s allegations, the court attached no significance to the police officers’ obvious interest in the applicant’s allegations of ill‑treatment being rejected. Overall, the trial court’s reasoning for its dismissal of the applicant’s objection displays a failure to conduct its own independent assessment of all the relevant factors with a view to ascertaining whether there were reasons to exclude from evidence the applicant’s confession statement, allegedly “tainted” by a violation of Article 3 of the Convention, so as to ensure the fairness of the trial, and instead indicates its reliance on the decision of the investigative authority ..., which the Court has found to have been based on an investigation which did not meet the Article 3 requirements .... This lack of a careful assessment of the quality of the impugned evidence (the applicant’s confession statement) and the circumstances in which it was obtained, which cast doubts on its reliability and accuracy, was not remedied by the higher courts. In consequence, the applicant’s confession obtained as a result of his inhuman and degrading treatment ... was used by the domestic courts as evidence of the applicant’s guilt. In so doing, the domestic courts legalised the police officers’ efforts to use a “statement of surrender and confession” to document the applicant’s confession, obtained under duress, after his apprehension on suspicion of having committed a crime, contrary to the meaning envisaged for such a statement in Article 142 of the Code of Criminal Procedure (voluntary statement by a person about a crime he or she has committed ...).

92. The Court notes further that before giving the “statement of surrender and confession” the applicant was not informed of the right to legal assistance. No justification – other than compliance with the domestic law – was offered by the domestic courts for the applicant’s initial lack of access to a lawyer in police custody. According to the domestic courts in the applicant’s case, no prior access to a lawyer was required in order to make a statement of surrender and confession. The subsequent use of such a statement in evidence at the trial could not therefore be contested on the ground of the lack of legal advice .... Such a position complied with the Supreme Court’s case‑law on the issue ....

93. The Court reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial. Early access to a lawyer at the investigation stage of the proceedings serves as a procedural guarantee of the privilege against self‑incrimination and a fundamental safeguard against ill-treatment, given the particular vulnerability of the accused at that stage of the proceedings .... In order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (see Salduz, cited above, § 55). A systematic restriction of the right of access to legal assistance, on the basis of statutory provisions, is sufficient in itself for a violation of Article 6 to be found (see Salduz, cited above, § 56; and Dayanan v. Turkey, no. 7377/03, § 33, 13 October 2009).

95. The absence of a domestic-law requirement of access to a lawyer for a statement of surrender and confession was used as leeway to circumvent the applicant’s right as a de facto suspect to legal assistance and to admit his statement of surrender and confession, obtained without legal assistance, in evidence to establish his guilt. This has irretrievably prejudiced the rights of the defence. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings and the possibility of challenging the admissibility of the evidence at issue at the trial and on appeal could remedy the defects which had occurred during police custody.

96. Even assuming that the applicant had been informed of the constitutional right not to incriminate himself before making his confession statement, as was found by the domestic courts, he cannot be said to have validly waived his privilege against self-incrimination in view of the Court’s finding that he had given his confession statement as a result of his inhuman and degrading treatment by the police. In any event, no reliance can be placed on the mere fact that the applicant had been reminded of his right to remain silent and signed the relevant record (see Salduz, cited above, § 59; and Płonka v. Poland, no. 20310/02, § 37, 31 March 2009), especially because the record cited Article 51 of the Constitution without explaining its meaning. Furthermore,since the lack of access to a lawyer in the present case resulted from the systemic application of legal provisions, as interpreted by the domestic courts, and the applicant was not informed of the right to legal assistance before signing the statement of his surrender and confession, the question of the waiver of the right to legal assistance is not pertinent.

97. The Court concludes that the domestic courts’ use in evidence of the statement of the applicant’s surrender and confession obtained as a result of his ill-treatment in violation of Article 3 and in the absence of access to a lawyer has rendered the applicant’s trial unfair.
______

Thus, it is very highly likely - IMO a practical certainty - that the ECHR will find Amanda's conviction for calunnia was unfair, in that it was based upon violations of the Convention (likely Article 3, and without dispute, Article 6.1 with 6.3c).
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Re: ECHR: Convention Violations and Case-Law

Postby Hugh Jorgan » Wed Oct 21, 2015 3:36 am

Cut and paste, cut and paste. There's no substitute for law school, Decimals. You just keep skipping right over the issues, starting with "custody".

Did you see that word up there when you went wild with the highlighter? LOL That simple 7 letter C-word gets you EVERY time!

It's almost as bad as your inability to recognize that the ECtHR does not adopt a presumption that all police are liars! LOL There are TWO sides to the contest, genius, not one.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Wed Oct 21, 2015 6:14 am

A case from 2013 has been communicated to Italy. This shows that the ECHR is (we can hope) working toward Amanda's application, which was lodged in November, 2013.

Requête no 75895/13
Mauro ALFARANO contre l’Italie
et 4 autres requêtes
(voir liste en annexe)

Communiquée le 28 septembre 2015

The Alfarano and other four cases, which involve multiple victims, concern the police brutality against peaceful demonstrators at the G8 conference in Italy in 2001, and the failure of the Italian judicial system to adequately address the violations of Convention Article 3 (prohibition of torture or inhuman and degrading treatment).

If one reads the records of the brutality of the Italian police in this case, one can appreciate the situation that Amanda and Raffaele were threatened with in November, 2007.

For the communication of the Alfarano et al. v Italy cases, here is a Google translation of the French text of the applicants's complaints and the ECHR's questions:

COMPLAINTS
Relying on Article 3 of the Convention, the applicants complained:
- Have been subjected to torture and inhuman and degrading treatment within the barracks of Bolzaneto;
- Conditions in which took place the medical examination, including the lack of adequate health care and the presence of police officers during the visit;
- Have been denied the right to contact a lawyer, a person of their choice and, if applicable, a consular representative;
- The lack of identification of most of the perpetrators of harassment as a result of the lack of cooperation of security forces during the procedure.
In the field of Articles 3 and 13 of the Convention taken, the applicants complain:
- The lack of an effective investigation, notably because of the absence in the Italian criminal legislation punishing an offense any act contrary to the provisions of Article 3 of the Convention. The applicants complain that those responsible for ill-treatment have been prosecuted only for less serious offenses, including certain prescribed in the criminal proceedings. Sentenced to light penalties, they have, in addition, benefited from the pardon prescribed by Act No. 241/2006. The applicants also allege that the same people have been subject to any disciplinary sanction and even got, mostly promotions;
- The lack of an effective remedy may allow them to report the abuse to which they were subjected and get adequate compensation.
In the only application no 21911/14, the applicants also complain:
- On the ground of Article 5 § 2 of the Convention, the lack of communication in the shorter period and, if appropriate in the presence of an interpreter, of the reasons for their arrest and any charges against them;
- Relying on Article 8 of the Convention, the inability to get in touch with their families, relatives or, where applicable, their consular authorities. They also complain that they were deprived without just cause of their personal property, goods that have never been returned to the applicants;
- Relying on Articles 9, 10 and 11 of the Convention of the violation of their freedoms, caused by the mere fact of having participated in the protests of the G8.
GENERAL QUESTIONS
1. The applicants have been-they were subjected, in violation of Article 3 of the Convention, torture and / or inhuman or degrading treatment? In particular, the alleged ill-treatment by the applicants and established by the domestic courts, is do they analyze in torture or inhuman and degrading treatment under Article 3 (Selmouni v. France [GC], no 25803/94, §§ 91-105, ECHR 1999-V; Dedovskiy and others v Russia, No. 7178/03, §§ 81-85, ECHR 2008 (extracts).. Gäfgen v Germany [GC], no 22978 / 05, §§ 87-93, ECHR 2010; Cestaro c Italy, No. 6884/11, §§ 171-190, April 7, 2015).?
2. Given the procedural protection against torture and inhuman or degrading treatment and the right to an effective remedy in this respect, the investigation in this case by the domestic authorities did it meets the requirements of sections 3 and 13 of the Convention (Bati and others v Turkey, 33097/96 and 57834/00 our, § 133-137, ECHR 2004-IV (extracts), Gäfgen cited above, §§ 115-130;. Cestaro cited above, § 236 )?
3. The Italian criminal legislation as a whole, including the regulation on the prescription, it ensures adequate sanction of torture and inhuman or degrading treatment under Article 3 (Gäfgen cited above, §§ 117) ?
SPECIFIC QUESTION
What disciplinary measures were, if any, taken against police officers accused of crimes committed in the Bolzaneto barracks? What was the evolution of their career, during and after the conclusion of the criminal proceedings against them?
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Re: ECHR: Convention Violations and Case-Law

Postby struoc » Wed Oct 21, 2015 6:23 am

thats good news Numbers!
hopefully it will get this mess of miginni's cleared up once and for all.

when massei appointed migninni to investigate the interrogation, it was such a circus act.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Wed Oct 21, 2015 10:27 pm

Another ECHR case that has relevance to the AK-RS case, Amanda's application to the ECHR, and to the rights of defendants in the Council of Europe States, including Italy:

DVORSKI v. CROATIA 25703/11 [GC] 17/10/2015

In the Dvorski case, the police denied (using a deception) the availability of Dvorski's lawyer of choice. Instead, the police provided a defense lawyer of their preference. Among the results of this action by the police was the limitation of consultation between the police-chosen lawyer and Dvorski prior to his questioning to 10 minutes, an insufficient time considering the gravity of the charges against Dvorski, which included murder. Dvorski's chosen lawyer had been arbitrarily turned away by the police when the lawyer had appeared at the police station much earlier than the police-chosen lawyer and would have been able to provide hours of consultation.

It should be noted that the ECHR strives to evaluate the actual facts of a case and does not rely on the mere formalisms (legalisms) that may be used by State authorities as a mechanism to violate or to obscure the violation of a person's Convention rights.

Some excerpts of interest:

108. In this connection, the Court again underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (see Salduz, cited above, § 54), and emphasises that a person charged with a criminal offence should already be given the opportunity at this stage to have recourse to legal assistance of his or her own choosing (see Martin, cited above, § 90). The fairness of proceedings requires that an accused should be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support for an accused in distress and checking of the conditions of detention (see Dayanan, cited above, § 32).

112. The Court has found that the police did not inform the applicant either of the availability of the lawyer G.M. to advise him or of G.M.’s presence at Rijeka Police Station; that the applicant, during police questioning, confessed to the crimes with which he was charged and that this confession was admitted in evidence at his trial; and that the national courts did not properly address this issue and, in particular, failed to take adequate remedial measures to ensure fairness. These factors, taken cumulatively, irretrievably prejudiced the applicant’s defence rights and undermined the fairness of the proceedings as a whole.

113. The Court therefore finds that in the circumstances of the present case there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
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Re: ECHR: Convention Violations and Case-Law

Postby mjlaris » Fri Oct 23, 2015 6:09 am

Hugh Jorgan wrote:Cut and paste, cut and paste. There's no substitute for law school, Decimals. You just keep skipping right over the issues, starting with "custody".

Did you see that word up there when you went wild with the highlighter? LOL That simple 7 letter C-word gets you EVERY time!

It's almost as bad as your inability to recognize that the ECtHR does not adopt a presumption that all police are liars! LOL There are TWO sides to the contest, genius, not one.


The ECHR is to the Italian Supreme Court as the US Supreme court is to a state supreme court. Also, you should know that the burden of proof is on the prosecution.
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Re: ECHR: Convention Violations and Case-Law

Postby Hugh Jorgan » Fri Oct 23, 2015 6:05 pm

mjlaris wrote:
Hugh Jorgan wrote:Cut and paste, cut and paste. There's no substitute for law school, Decimals. You just keep skipping right over the issues, starting with "custody".

Did you see that word up there when you went wild with the highlighter? LOL That simple 7 letter C-word gets you EVERY time!

It's almost as bad as your inability to recognize that the ECtHR does not adopt a presumption that all police are liars! LOL There are TWO sides to the contest, genius, not one.


The ECHR is to the Italian Supreme Court as the US Supreme court is to a state supreme court. Also, you should know that the burden of proof is on the prosecution.


Following your analogy, in the US, the burden of proof is shifted to the appellant after she is convicted at trial.

The presumption of innocence no longer operates in her favor and she now bears the burden of establishing that the convicting court erred.

In any event, regardless of locus and the quantum of the burden of proof before the ECtHR, I think it's a safe bet that, unlike Numbers aka Decimals aka The Cut & Paste King of Amateur ECHR Enthusiasts, the court will not be PRESUMING that the police are liars! LOL

It will be interesting to see whether, how and to what degree Knox can prove they are liars. (It certainly seems to be the case that she failed to convince ANY Italian court that she was struck by police - not even Hellmann was persuaded to make such a finding!)
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Re: ECHR: Convention Violations and Case-Law

Postby roteoctober » Sat Oct 24, 2015 2:57 am

You are wrong to assume that being struck by the police is the central issue, and indeed it was quite secondary even in Italy.

The point with the ECHR will be much more about legal guarantees, like when a lawyer was appointed with respected to the signing of the statements, things like that.

It is true that in the appeal written by Carlo Della Vedova there is also a reference to the HIV thing under the chapter "torture", but I would not rely too much on that.
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Re: ECHR: Convention Violations and Case-Law

Postby pmop57 » Sat Oct 24, 2015 2:59 am

Hugh Jorgan wrote:What the heck is the ECHR?


???
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sat Oct 24, 2015 10:30 pm

roteoctober wrote:You are wrong to assume that being struck by the police is the central issue, and indeed it was quite secondary even in Italy.

The point with the ECHR will be much more about legal guarantees, like when a lawyer was appointed with respected to the signing of the statements, things like that.

It is true that in the appeal written by Carlo Della Vedova there is also a reference to the HIV thing under the chapter "torture", but I would not rely too much on that.


It is important to emphasize that applications to the European Court of Human Rights (ECHR) are claims by one or more persons or organizations alleging that a Respondent State has violated the rights, under the European Convention on Human Rights (the Convention) and ECHR case-law, of the applicant. They are not appeals and the ECHR generally does not directly order a Respondent State to take any action, except in certain situations considered urgent by the ECHR, such as extradition to some non-Council of Europe States with suspect human rights records.

The ECHR states that it is the Master of the Law and Master of the Facts in the cases it takes. It reviews the claims of applicants, decides their admissibility on an adversarial basis, and if admissible, judges the case on an adversarial basis. As Master of the Facts and Master of the Law, the ECHR uses the Convention, case law, other international law, and inference to judge cases. It is chartered to create case law as necessary to enforce the meaning of the Convention according to its judgment.

CoE States, including Italy, have made solemn treaty commitments to follow the judgements of the ECHR. Italy has constitutional requirements including judgments of its Constitutional Court that require it to follow the final judgments of the ECHR.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sun Oct 25, 2015 7:56 am

Numbers wrote:
roteoctober wrote:You are wrong to assume that being struck by the police is the central issue, and indeed it was quite secondary even in Italy.

The point with the ECHR will be much more about legal guarantees, like when a lawyer was appointed with respected to the signing of the statements, things like that.

It is true that in the appeal written by Carlo Della Vedova there is also a reference to the HIV thing under the chapter "torture", but I would not rely too much on that.


It is important to emphasize that applications to the European Court of Human Rights (ECHR) are claims by one or more persons or organizations alleging that a Respondent State has violated the rights, under the European Convention on Human Rights (the Convention) and ECHR case-law, of the applicant. They are not appeals and the ECHR generally does not directly order a Respondent State to take any action, except in certain situations considered urgent by the ECHR, such as extradition to some non-Council of Europe States with suspect human rights records.

The ECHR states that it is the Master of the Law and Master of the Facts in the cases it takes. It reviews the claims of applicants, decides their admissibility on an adversarial basis, and if admissible, judges the case on an adversarial basis. As Master of the Facts and Master of the Law, the ECHR uses the Convention, case law, other international law, and inference to judge cases. It is chartered to create case law as necessary to enforce the meaning of the Convention according to its judgment.

CoE States, including Italy, have made solemn treaty commitments to follow the judgements of the ECHR. Italy has constitutional requirements including judgments of its Constitutional Court that require it to follow the final judgments of the ECHR.


For completeness, I should include that the ECHR works with the Respondent State's government, typically an agent from the foreign ministry, and not its judiciary. The judgment of the ECHR of a violation of rights often includes "just satisfaction" (compensation) to be paid within 3 months of the judgment by the government to the victim. Such payment could be considered a required Respondent State action ordered by the ECHR. All actions or judgments of the ECHR are supervised by the CoE's Committee of Ministers, and are directed at the Respondent State, never at the applicant or victim. Finding by the ECHR of an unfair trial (violation of Article 6 of the Convention) generally allows the applicant to request a new trial, which must be conducted strictly in accordance with the Convention. Failure of the State to allow such trial may result in a new ECHR case and an additional finding of a violation of the Convention with just satisfaction, as well as more diplomatic pressure from the CoE Committee of Ministers.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Sun Oct 25, 2015 9:35 pm

It is useful, I believe, to provide examples of the applicant's complaints conveyed and ECHR questions asked of the parties in a communication, when there may be some relevance to Amanda Knox's application to ECHR on her claimed wrongful conviction for calunnia by Italy.

Here is an example of a person, a suspected terrorist, who was interviewed under unusual circumstances by Cypriot police (and possibly others) and convicted of serious terrorism-related offenses. While a person who was guilty of such offenses would not, to many of us, be at all a sympathetic individual, it is worthwhile to illustrate the approach of the ECHR employs to gather facts to judge a case.

YAACOUB v. CYPRUS
60416/14 | Communicated Case | 28/09/2015

COMPLAINTS

76. The applicant complains under Article 3 of the Convention that he was subjected to inhuman and degrading treatment and that the six statements he provided were involuntary: they were preceded by lengthy interrogations, the applicant was sleep deprived, he was not cautioned and no record of the interviews was kept, in breach of the Judges’ Rules.

77. The applicant further complains that the failure of the prosecution to provide the expert witness’s report in good time, placed him at a substantial disadvantage, breaching the principle of equality of arms as protected by Article 6.

78. Finally, the applicant complains that the Assize Court, in giving the prosecution leave to amend the indictment from the one on which he was originally committed for trial, violated his right to a fair trial under Article 6 § 3(a) and (b) of the Convention.






QUESTIONS TO THE PARTIES

I. Factual matters

1. The Government are requested to submit copies of:

(i) the diary of action which was kept by the police officers conducting the investigations, recording, inter alia, the actions taken during the investigation of the case and the times of the applicant’s interviews;

(ii) any other records concerning the applicant’s detention which are relevant to his allegations concerning his interviews and statements obtained as a result of those interviews.

(iii) the minutes from the three remand proceedings; and

(iv) the witness statements admitted at trial, including that of the applicant.



2. The Government are also requested to clarify whether the applicant was informed of his right to a lawyer before he was interviewed and to submit any proof of the same.

II. Admissibility and merits

3. Did the applicant suffer ill-treatment during his detention in breach of Article 3 of the Convention?



4. If the answer to question 3 is negative, having regard to the circumstances in which the applicant’s incriminating statements were obtained, including the number of interviews, their length and the time of day they took place, has there nonetheless been a breach of applicant’s right not to incriminate himself?



5. Further to questions 3 and 4, as a result of the admission of those statements at trial, has there been a breach of the applicant’s right to a fair trial under Article 6 § 1, either alone or read in conjunction with Article 6 § 3 (c) of the Convention, on account of the following factors (either taken separately or cumulatively):

(i) any ill-treatment of the applicant;

(ii) any breach of the applicant’s right not to incriminate himself; and

(iii) any failure to provide him with timely access to a lawyer following his arrest?
Expert witness testimony must be the product of reliable principles and methods. {Paraphrase of Fed. Rules of Evidence 702c}
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Oct 29, 2015 8:00 am

The ECHR has a new video presentation on the requirements for admissibility of an application; there are 14 different language versions of the video. This is the English version:

https://www.youtube.com/watch?v=--PSjIg ... Dv&index=1

The video is also accessible from the ECHR home page.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Fri Oct 30, 2015 8:40 am

An ECHR case in which the ECHR uses inference to judge that the government and police and domestic courts falsely claim that a confession is not the product of duress:

HAJRULAHU v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" 37537/07 29/10/2015

In the above case, the applicant had been abducted by police and tortured prior to his "official" arrest and confession.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue Dec 15, 2015 6:31 pm

What is the reaction of the ECHR to documents or records that it requests from a respondent state in a case, that are critical to the ECHR's understanding of the case, and which are not produced by the respondent state?

The short answer is that the ECHR may make inferences unfavorable to the position of the respondent state, depending on the circumstances. See paragraph 91 in the quote below from Blokhin v Russia 47152/06.

Blokhin, 12 years of age at the relevant time, was interrogated by police with no lawyer or guardian present on a complaint of extortion of money lodged by a 9-year-old and that child's mother, and initially confessed. Blokhin, who suffered from attention deficit hyperactivity disorder and enuresis, was committed to a facility for delinquents for 30 days, without formal court proceedings or the opportunity to have any cross-examination of the witness.

One complaint by Blokhin was that his psychological and medical problems were not treated during his commitment, an alleged violation of Convention Article 3. The ECHR requested that Russia supply a copy of his medical records.

However, ... "the [Russian] Government failed to produce one, claiming that the records had been destroyed on account of the expiry of the three-year time‑limit on storage established by Order no. 340 of the Ministry of the Interior of 12 May 2006. However, the Government did not submit a copy of that Order, which has never been published and is not accessible to the public. At the same time it is clear from the official, published Instructions of the Ministry of Health that the time-limit for storage of medical records is ten years (see paragraph 71 above). It is significant that the Government did not submit any authentic documents confirming that the medical records had indeed been destroyed. Moreover, the Government themselves relied on the records in question in support of their allegation that the applicant had not informed the medical staff of the temporary detention centre for juvenile offenders about his health problems, although they did not produce a copy of the documents referred to (see paragraph 32 above).

91. In view of the above, the Court finds the Government’s explanations for their failure to submit the requested documents insufficient and considers that it can draw inferences from the Government’s conduct in view of the well-founded nature of the applicants’ allegations (see, for similar reasoning, Maksim Petrov v. Russia, no. 23185/03, §§ 92-94, 6 November 2012).

92. The Court observes that the applicant’s grandfather repeatedly informed the authorities about the applicant’s health problems, stating that his state of health was incompatible with detention (see paragraphs 20, 40 and 41 above). In such circumstances, and in the absence of any documentary evidence supporting the Government’s allegation to the contrary, there is no reason to doubt the applicant’s assertions that the staff of the temporary detention centre for juvenile offenders had been made aware of his health problems.

94. The Court finds the lack of expert medical attention with regard to the applicant’s condition unacceptable. It notes with concern that during the applicant’s detention his condition deteriorated to the point where he had to be taken to hospital suffering from neurosis on the day after his release (see paragraph 38 above).

95. To sum up, the Government have not provided sufficient evidence to enable the Court to conclude that the applicant received adequate medical care in respect of his attention-deficit hyperactivity disorder and enuresis during his detention in the Novosibirsk temporary detention centre for juvenile offenders. The Court considers that the lack of adequate medical treatment amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention. In view of that finding, it is not necessary to examine the remainder of the applicant’s complaints under that Article.

96. The Court therefore finds that there has been a violation of Article 3 of the Convention."
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Wed Dec 16, 2015 1:42 am

An interesting development reported from Russia:

http://www.reuters.com/article/uk-russi ... JQ20151215

President Vladimir Putin has signed a law allowing Russia's Constitutional Court to decide whether or not to implement rulings of international human rights courts.

The law, published on Tuesday on the government website, enables the Russian court to overturn decisions of the Strasbourg-based European Court of Human Rights (ECHR) if it deems them unconstitutional.

Human Rights Watch has said the law is designed to thwart the ability of victims of human rights violations in Russia to find justice through international bodies.

The law comes after the ECHR ruled in 2014 that Russia must pay a 1.9 billion euro ($2.09 billion) award to shareholders of the defunct Yukos oil company, a verdict that added to financial pressure on Moscow as it struggles with shrinking revenues due to tumbling oil prices and Western sanctions.

The ECHR said it had received* 218 complaints against Russia in 2014 and that it had found 122 cases in which Moscow had violated the European Convention on Human Rights, including the deportation of Georgian citizens in 2006 and the incarceration of defendants in metal cages during Russian court hearings.


* Probably, this word should be "reviewed" or "judged".

As of 31 Oct 2015, there were 9250 applications against Russia - 13.9% of the total of 66,500 - pending at the ECHR. Russia has the second largest number of applications pending against it; in contrast (or similarly), Italy has the fourth largest number of applications pending against it - 7800, or 11.7% of the total.

According to the European Convention of Human Rights and Council of Europe treaties, a nation may withdraw from the Convention and the Council of Europe after giving appropriate notice, but while a member of the Council of Europe, it cannot set it own human rights laws above those of the Convention, unless such laws provide a higher level of human rights protection than those of the Convention.

Thus, if Russia in a case overrides execution of an ECHR judgment against it in accordance with its new Russian law, there could be another ECHR case against it, and the Russian law of supremacy of their Constitution over the Convention and ECHR case-law would be judged as a violation of the Convention. It is likely that a diplomatic tussle between the other 45 Council of Europe states and Russia would follow.

Italy has a judgment, No. 113/2011, from its Constitutional Court (a body separate from the Supreme Court of Cassation) that if the ECHR judges that a trial was unfair - such as due to a violation of Convention Article 6 or Article 3 - that a revision trial may be requested by a convicted person or the General Public Prosecutor when it is necessary to reopen proceedings in order to comply with a final judgment of the ECHR.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Thu Dec 17, 2015 9:28 am

ECHR case of interest: SOBKO v. UKRAINE 15102/10 17/12/2015

See paragraphs 51 - 62.

Violation of Convention Article 6.1 with 6.3c (on account of the initial restriction on the applicant’s right to legal defence).

Sobko was accused of and convicted of murdering his stepson. His initial confession, given allegedly voluntarily as a witness, when he had no lawyer, and which he did not renounce until about 4 months had passed after he had a lawyer, contributed to his conviction. There was other evidence suggesting his guilt.

Excerpts:

54. ... the Court notes that on 3 October 2008 the police questioned the applicant several times. The first time, he was questioned, along with his wife, as a witness to the death of his stepson. It was not disputed that the house in which the supposed accident had taken place had been locked, that the applicant had had the key to it, and that he had been the last person to see the boy alive (see paragraphs 7-9 above). The Court observes that the police decided to question the applicant once again on that day following information from the forensic medical expert that the child’s death had resulted from strangulation by a third person. While being repeatedly questioned in his home, the applicant maintained “the accident” version. He was then taken to the police station, where it was proposed to him that he should “tell the truth” and where he wrote his statement of “voluntary surrender to the police” (see paragraphs 11-13 above).

55. Looking beyond the appearances and formal domestic classifications of the applicant’s procedural statuses, the Court considers that at least since the evening of 3 October 2008 the applicant was de facto treated as a suspect in the murder case and was therefore entitled to have access to a lawyer (see, for comparable examples in the case-law, Stojkovic v. France and Belgium, no. 25303/08, § 51, 27 October 2011; Khayrov v. Ukraine, no. 19157/06, § 74, 15 November 2012; and Zamferesko v. Ukraine, no. 30075/06, § 61, 15 November 2012; and, for converse examples, Smolik v. Ukraine, no. 11778/05, § 54, 19 January 2012, and Bandaletov v. Ukraine, no. 23180/06, §§ 59 and 60, 31 October 2013).

56. While there is no evidence that the applicant’s initial confession was extracted from him by coercion, the Court considers that the mere fact that he had been taken to the police station and questioned there without having any legal assistance to rely on indicated his vulnerability. This was even more so given his low intellectual level, which, as established in the course of his forensic psychiatric examination, was close to a slight mental disability (see paragraph 25 above). Accordingly, the Court doubts that the applicant could have fully understood the consequences of his confession to the murder of his minor stepson.

57. On the facts, the Court does not find any compelling reason for restricting the applicant’s right to a lawyer during his initial questioning as a suspect on 3 October 2008, or during his subsequent questioning on 4 October 2008. A lawyer was not appointed for the applicant until 5 October 2008.

58. The Court is mindful of the fact that the applicant maintained his confession for about four months, while being legally represented (see paragraphs 18, 21, 22 and 26 above). The Court considers, however, that his initial confession must have affected the investigation strategy and set the framework within which his further defence had to be mounted. Accordingly, regardless of whether the applicant chose to retract or maintain that confession, the initial breach of his right to defence could not be remedied by the mere fact that he was subsequently provided with legal assistance (see Chopenko v. Ukraine, no. 17735/06, § 52, 15 January 2015).
Expert witness testimony must be the product of reliable principles and methods. {Paraphrase of Fed. Rules of Evidence 702c}
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Re: ECHR: Convention Violations and Case-Law

Postby His Grey Eminence » Mon Dec 21, 2015 11:03 pm

Cassation confirms Bruno Contrada's sentence as definitive after ECHR ruled in his favour early this year

https://it.wikipedia.org/wiki/Bruno_Contrada

Assuming the ECHR does take the case and Knox does win, my understanding is she will be guaranteed a revision trial.

But there is no guarantee she will win that revision trial - depending on to what extent the ECHR issues constraints.
Judges are rather adept at finding legal reasoning to circumvent obstacles if their sense of fairness has been offended.

The issue Knox will have to surmount is the feeling in Italy that she gave Lumumba's name to divert attention from Guede, you see the sentiment expressed again in the recent Cassation report.
It is great to win the arguments on IIP and ISF, but a bit pointless if this doesn't carry over to the only arena that actually counts.
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Re: ECHR: Convention Violations and Case-Law

Postby erasmus44 » Mon Dec 21, 2015 11:19 pm

His Grey Eminence wrote:Cassation confirms Bruno Contrada's sentence as definitive after ECHR ruled in his favour early this year

https://it.wikipedia.org/wiki/Bruno_Contrada

Assuming the ECHR does take the case and Knox does win, my understanding is she will be guaranteed a revision trial.

But there is no guarantee she will win that revision trial - depending on to what extent the ECHR issues constraints.
Judges are rather adept at finding legal reasoning to circumvent obstacles if their sense of fairness has been offended.

The issue Knox will have to surmount is the feeling in Italy that she gave Lumumba's name to divert attention from Guede, you see the sentiment expressed again in the recent Cassation report.
It is great to win the arguments on IIP and ISF, but a bit pointless if this doesn't carry over to the only arena that actually counts.



Of course, the judiciary is supposed to be immune from influence by this kind of "feeling". I generally agree that it will be a tough slug back in the Italian court system even if she wins at ECHR. On the other hand, that was true of this entire case after the Massei verdict and they finally turned around and did the right thing.
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Re: ECHR: Convention Violations and Case-Law

Postby His Grey Eminence » Mon Dec 21, 2015 11:39 pm

Supposed to be immune but never are.

Take the recent Pistorius case. OP would never have been convicted on appeal if the person in the toilet cubicle had been a giant black serial rapist, but that is the implication of the appeal ruling. My gut feeling is OP knew who he was firing at so I am not particularly outraged by the outcome. But clearly it is legal bollocks and was just a one-off work around solution to assuage feelings of popular anger - probably shared by the appeal court - at the finding of facts by the lower court.

Every single court has ruled against her thus far on Calunnia and if she is granted a revision trial it might be worth trying to work out why.
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Re: ECHR: Convention Violations and Case-Law

Postby Numbers » Tue Dec 22, 2015 1:02 am

His Grey Eminence wrote:Cassation confirms Bruno Contrada's sentence as definitive after ECHR ruled in his favour early this year

https://it.wikipedia.org/wiki/Bruno_Contrada

Assuming the ECHR does take the case and Knox does win, my understanding is she will be guaranteed a revision trial.

But there is no guarantee she will win that revision trial - depending on to what extent the ECHR issues constraints.
Judges are rather adept at finding legal reasoning to circumvent obstacles if their sense of fairness has been offended.

The issue Knox will have to surmount is the feeling in Italy that she gave Lumumba's name to divert attention from Guede, you see the sentiment expressed again in the recent Cassation report.
It is great to win the arguments on IIP and ISF, but a bit pointless if this doesn't carry over to the only arena that actually counts.


Your post is interesting but fails to address the legal issues that will, in reality, be dealt with in a revision trial. Perhaps this is because your post does not address what the effects would be of an ECHR judgment that finds that Italy violated Knox's Article 6 or Article 3 Convention rights by convicting her of calunnia against Lumumba.

The effects of an ECHR judgment in favor of Knox (that is, that Italy had violated her Convention rights) would be that she could ask for a revision trial, and that trial must be conducted in accordance with the Convention and ECHR case-law. That means that no statement that she made during the interrogation without a lawyer, or during the period of custody without a lawyer, may be used against her. Thus the alleged evidence of calunnia against Lumumba would not be admissible in the revision trial, and Knox would be necessarily acquitted under CPP Article 530.

Under Italian Constitutional Court judgment 113/2011, a revision trial may be requested when it is necessary for Italy to reopen proceedings in order to comply with a final judgment of the ECHR. The Italian judicial system could, in theory, reject such a request. However, Knox could then lodge another complaint with the ECHR alleging that Italy had violated her Convention rights under Article 6 and Article 13 (states must provide remedies for violations of Convention rights).

If the revision trial then maintained her conviction against calunnia, with no evidence of such calunnia, it would be obviously an arbitrary judgment. So should the revision trial issue a judgment that is arbitrary, Knox would be entitled to appeal to the Supreme Court of Cassation (CSC; CPP Article 640). Should the CSC uphold an arbitrary judgment, Knox could again lodge a complaint with the ECHR of a violation of her Convention Article 6 and Article 13 rights, and I have no doubt the ECHR would find against Italy. Of course, this scenario, if it were to occur, would take some time.

However, Knox would most likely be rewarded with compensation and legal expenses from Italy each time that the ECHR found against Italy, and when Italy finally acquitted her of the calunnia charge, she would be entitled to additional compensation for miscarriage of justice and wrongful confinement in accordance with CPP Article 643. Should Italy attempt to stall in giving the acquittal, the likely response of the ECHR would be to increase the compensation paid by Italy to Knox at each iteration, and to exert diplomatic pressure on Italy through the Council of Europe mechanism, the Committee of Ministers.

ETA: The case of Bruno Contrada is quite different from that of Amanda Knox. There is apparently no question that Contrada, a high-ranking police officer, performed certain actions such as supplying the Mafia or similar criminal organization with information about police activities or information, thus apparently aiding the criminal organization. ECHR judged, however, against Italy because Contrada's actions were alleged to be subject to criminal penalty, but were not defined under Italian law as crimes, and thus his conviction was a Convention violation. The Italian judiciary has refused to hold his revision trial, and this refusal was confirmed by an appeal court according to the Wikipedia article: The Court of Appeal of Caltanissetta has rejected the request for a retrial on Nov. 18, 2015, confirming the final judgment. However, my reading of a Google Translation of the Wikipedia article does not support your statement: Cassation confirms Bruno Contrada's sentence as definitive after ECHR ruled in his favour early this year. There is no mention in the Wikipedia article of the CSC confirming the refusal for a revision trial, only the appeal court. Thus, the case may be ongoing.
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