Friday, May 10, 2019

Major Surprise And Setback For Knox: Italy Now Challenges Knox’s “No Lawyer” ECHR Award #2

Posted by KrissyG


Linos-Alexandre Sicilianos, from 1 April the ECHR’s chief judge

Legal Context Of Italy’s Appeal

The Italian government has lodged an appeal against the ECHR ruling in January 2019 upholding that Amanda Knox’ right to a fair trial (Article 6 of the Human Rights Convention) had been breached in that the translator had not been impartial and that as a suspect, Knox should have been given a lawyer earlier than she had.

From the newspaper UMBRIA 24

The ruling by which the European Court of Human Rights has argued that Italy has violated Amanda Knox’s right of defense during the investigation of the murder of Meredith Kercher is contested before the Grande Chambre in Strasbourg. The decision by which last January Italy had been condemned to pay 10,400 euros for moral damages to the American student, definitively acquitted by the accusation of murdering her English roommate on November 1, 2017 in Via della Pergola in Perugia, is was challenged by the Italian government. La Grande Chambre, which represents a sort of Cassation of the European Court, is composed of 17 judges. In the recent past, Silvio Berlusconi has also passed through the Grande Chambre bringing to the judges’ attention a question concerning its reliability.

Interrogation Last January, the Court recognized Italy’s violation of Knox’s right to defense during the November 6, 2007 interrogation without receiving evidence confirming police complaints during the same interrogation . Amanda had asked for half a million euros.

In my article here I summarise – from my point of view – the findings of the ECHR in the original deliberations are as follows:

Summary:  The main issues revolve around the question of admissibility.  I have identified two or three possible grounds of appeal on points of law.  They are:

• Italy submitted that date-wise, the application by Knox had been submitted too early as the hearings had not yet been finalized.  ECHR rejects this saying that the hearings finalized very shortly after.  As far as I can see, this is not so.

• The ECHR relies on comments by Hellmann Appeal Court, which was largely superseded and outranked by Chieffi Supreme Court, to argue factors of free will.

• The ECHR relies heavily on police minutes and the fact interpreter Donnino and a police office, RI, fail to record details of their expressions of familiarity with Knox, or make a note that (i) Knox was asked if she wanted a lawyer and declined, (ii) that start and end times are not recorded, and that (iii) hours are condensed into minutes. Is it an error of law to assume these police minutes represented a failure of procedure?

That’s not to say that these are the grounds Italy have set out. We don’t know those yet.

The rules for such an appeal are set out under Article 43 which states the following:

ARTICLE 43

Referral to the Grand Chamber

1. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.

2. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance.

3. If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.

From another newspaper citing the ECHR in Strasburg:

STRASBOURG (France) - The Government has challenged in front of the Grand Chamber the decision with which the European Court in Strasbourg claimed that Italy violated Amanda Knox’s right to defense in the investigation into the murder of Meredith Kercher, carried out at Perugia the evening of 1 November 2007, for which it has already been definitively acquitted by the Italian justice. The act - as learned by ANSA - was notified to the American’s lawyers, Carlo Dalla Vedova and Luciano Ghirga.

The Grand Chamber is a sort of Cassation of the European Court. “This - the lawyer Dalla Vedova explained - is a judge only of legitimacy. The Grand Chamber {Panel} will now have to rule on the admissibility of the Government’s request to transmit the case to be decided {by the Grand Chamber} of the European Court. Decision on which it has reserved. The request will pass to the discussion {of the Grand Chamber Panel}.”

It has to said that it is relatively rare for a case to be referred back to the Grand Chamber after the appeal is assessed for permissibility.  ECHR is predicated on case law, so I would expect Italy will be demonstrating an error of interpretation based on a previous case or cases. 

Case law generally refers to cases that have set a legal precedence.  For example, Salduz, which was to do with the rights of a person suspected of terrorist acts.

In my article I argued that the original ECHR claim by Knox was ‘out of time’ – in this case presented too early - as internal procedure had not been exhausted, and a heavy reliance on Hellmann (Appeal Court) and Boninsegna (which was not appealed against) instead of the higher Supreme Court (Chieffi) which overrides that of Hellmann.

Indeed, Hellmann was largely struck out and came in for stern criticism by Chieffi.  In effect, Dalla Vedova for his client, Knox, resuscitates the appeal lodged with Hellmann when Chieffi’s was the Res Judicata verdict. 

A principle in law is that you cannot have your case heard twice unless a higher court directs it back to the lower court.

It should be kept in mind that a referral to the ECHR Grand Chamber is statistically remote as the issue of admissibility has to be surmounted first.


Posted by KrissyG on 05/10/19 at 03:14 PM in


Comments

Hi KrissyG

Great work. You show up a huge mistake in the ECHR reasoning, which the Rome Ministry of Justice lawyers may not pick up on unless we advise them.

Here is how you summarise the ECHR judges as finding (actually wrongly) in this paragraph.

The ECHR relies heavily on police minutes and the fact interpreter Donnino and a police office, RI, fail to record details of their expressions of familiarity with Knox, or make a note that (i) Knox was asked if she wanted a lawyer and declined, (ii) that start and end times are not recorded, and that (iii) hours are condensed into minutes. Is it an error of law to assume these police minutes represented a failure of procedure?

Those are pretty typical rules for police interrogations anywhere. But different rules under Italian law applied to Knox, not those ones.

In all 4 sessions with police prior to her arrest Knox had merely the status of a person with possible useful information. That is stated right there on all 4 write-ups that Knox signed.

We showed in our 20-part series and additional posts by you that Knox was NOT EVER under interrogation prior to her arrest as legally defined in Italy.

http://truejustice.org/ee/index.php/tjmk/comments/The_Knox_Interrogation_Hoax_1_overview

Note especially this post which is a record of what Knox was actually chatting about on the night she was arrested.

http://truejustice.org/ee/index.php/tjmk/comments/the_knox_interrogation_hoax_12_proof_released

This different status was made very clear when Knox was on the stand at trial - one defense lawyer called it an interrogation, and Comodi corrected him AND HE AGREED AND APOLOGISED.

And even after the 5.45 AM session with Dr Mignini it was tentatively presumed that Knox was merely an accidental witness to a murder Patrick had committed.

The grounds for her arrest were not “possible murder”, they were that Knox knew something vital, and was a claimed eye-witness but had not come forward for four days.

Now see this?

http://truejustice.org/ee/index.php/tjmk/comments/the_knox_interrogation_hoax_14_third

This was Knox’s FIRST-EVER interrogation as Italian law prescribes it.

Knox herself asked for that session, under those rules (and then flunked it).

But then years later Judge Boninsegna in Florence made the “mistake” (we believe deliberately) of calling it an interrogation to arrive at a pro-Knox finding.

And so the ECHR channels him unwittingly, to assume that know was under interrogation on the night of 5/6 November.

And also to arrive at a pro-Knox finding.

Posted by Peter Quennell on 05/11/19 at 01:35 PM | #

The salient case law here is Salduz, which is referred to in at least 76 ECHR cases, including Ibrahim.  Ibrahim summarises all the case law in this (access to a lawyer) in a five point evaluation outline.  Salduz is the case law referred to in the ECHR judgment of January 2019 upholding Knox’ complaint of a breach of Article 6, right to a lawyer, which she claims therefore prejudiced her right to a fair trial.

Whilst we can point out to all the contradictions in Knox’ claims, what the Admissibility panel will be looking for is an error in application or whether the case law should be modified into a fresh precedent, which we can presume is what Italy are arguing, i.e., that the ECHR didn’t adhere to its own case law in Salduz.

Going back to the five hurdles outlined in Ibrahim, the issue seems to fall at the first hurdle:

“52. ...Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation.”

As Pete says, Knox was not under interrogation in the legal sense.

So, where did ECHR get the idea it was ‘already at the initial stages of police interrogation’ in Knox’s calunnia interview?  Well, we can turn smartly to Boninsegna, which Dalla Vedova heavily relies on.

The three items in Pete’s box, above, come directly form Boninsegna’s motivational report   Boninsegna avers that Knox was a suspect long before her so-called ‘interrogation’ and the claimed ‘slaps’. Donnino’s and Inspector Raffo’s friendliness were deemed contrary to Article 24 of the Italian Constitution in that it ‘violated the suspect’s rights’ [to remain of independent thought].  All this is to do with a quite different case as Boninsegna did not deal directly in the case against Knox’s calunnia charge.  He was judging in a separate case brought by the police against Knox in her alleged calunnia against them, which they lost.

In 2008, the European Court of Human Rights issued a groundbreaking decision in the 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.

We can readily see that (a) Knox was not being detained at a police station, she arrived of her own volition and (b) as of that point she was not a suspect, nor was she interrogated.  As soon as she accused Patrick Lumumba of being the rapist/killer of Meredith, the interview was stopped.

Posted by KrissyG on 05/11/19 at 05:08 PM | #

Very helpful post. Judges Hellman and Boninsegna really led the ill-researched ECHR judges astray.

These below are detailed past posts explaining the then-pending Boninsegna trial 2015-16 to offer some contexting for possible newer readers here.

http://truejustice.org/ee/index.php/tjmk/comments/the_amanda_knox_calunnia_trial_in_florence_1

http://truejustice.org/ee/index.php/tjmk/comments/the_amanda_knox_calunnia_trial_in_florence_2

It should best be read with the long analysis of the ECHR outcome last January which KrissyG posted on her blog, linked to above.

The Boninsegna sentencing report in English is not yet on TJMK but it will be soon.

This may all seem a bit “in the weeds” but this very unusual counter-appeal by the Italian government is an astonishing development for sure.

Bad timing for Knox. Neither Knox not Sollecito are at all liked in Italy. Knox’s visit in June could even result in her arrest as she is in contempt of the Supreme Court for not paying Patrick his $100,000 damages award.

There is also the enormous crowd of good people she has gratuitously hurt via her defamations and demonizations, and the angry drug-dealere she caused to be put away. There’ll be major fireworks for sure.

Posted by Peter Quennell on 05/12/19 at 05:00 PM | #

Maybe Knox should bring her checkbook to Modena in June to pay Italy back the 10,400 euros they were forced to award her by the ECHR ruling. Meanwhile, I wonder what Raffaele thinks about Knox returning to his neck of the woods, to Italy in June? Will he join her at the Modena conference, or send a few relatives as spies?

Will Knox arrive with her tiger stripe bearded “fiance” wearing his beads and hats? Will they surreptitiously take a train to Perugia so Knox can indulge a return to the scene of the crime?

Does she want one last drink at The Merlin pub, or to take selfies in front of the cottage?

Perhaps she will cross paths with Hekuran Kokomani again, or find her old drug dealers on familiar street corners?

She can play a game of basketball with Robinson where Rudy used to shoot hoops, or stop in to visit her former lawyer, Ghirgha, have coffee and sit where poor old Toto used to read.

Will she be persona non grata with ex-roommates Laura and Filomena? Or try to contact them to apologize?

Probably she wants a photo of the courtroom where her trial was held, maybe she’ll drive out to Capanne to show Chris the site of her miserable incarceration. Will she visit the current inmates?

Will she look up the priest who helped her, or tour the women’s prison where she had dance contest and cooked crabcakes?

Will she walk by Bubbles and buy new items for Robinson? Will she see what Le Chic has become?

Will she recall the jail visits Madison Paxton made to her?

Will she return to the Questura in triumphalism? Or drive by and take pix.

Will she steer clear of Raffaele’s Garibaldi apartment? Did she hide a few items after the crime that she wants to retrieve? Will she link up with former teachers and go back inside the classroom of University for Foreigners? Will she wear a wig and go incognito, or paint face as a cat?

Will Dr. Anderson throw his home open to her (if he’s still alive?), or meet her in Modena?

Posted by Hopeful on 05/12/19 at 05:41 PM | #

@Hopeful, it’s a trip down memory lane for sure!  She’ll claim it’s for ‘healing’ but really it’s returning to the crime scene to feel that surge of adrenaline and emotion which she cannot feel in any other situation.  That’s why she keeps rehashing it and reminding herself of the thrill she got, that she has never been quite able to recreate anywhere else in her life.  It’ll be a feeling of power and ownership of Meredith.  It’s what defines her, made her famous, what fulfilled her destiny aged 20.  Now she can feel like twenty any time she can relive her time and dominance over Meredith.  How she always knew no matter how bad the roller-coaster got, she had been promised rescue by virtue of being American and twenty, with the promise of big bucks if she could evade justice and bring out her book, articles and lectures, all on the same invigorating subject: herself and Meredith.  Now she sees herself as a success having achieved all that.  The moment in hers and Sollecito’s lives that defined them.  Knox lapping up the limelight, with Sollecito preferring to forget the whole thing and put it behind him.

Why would she return to Italy except with the intention of rubbing the Italians’ faces in her notoreity and probably dreaming of global publicity her scandalous visit will cause.

 

Posted by KrissyG on 05/13/19 at 05:19 PM | #

The attorneys representing Italy in the original ECHR case were “E. Spatafora, and their co-agent, Mrs M.L. Aversano”.  They - one or both - seem to have represented Italy in the ECHR in these two other cases: PROVENZANO V ITALY (Section one - 99130977 - 25 Oct 2018 - re medical care - or lack thereof - in prison) and KHLAIFA et al V ITALY (Section two - 16483/12 15 Dec 2016 - re Tunisian migrants deportation).

It’s not clear if they specialise in any particular area of ECHR law or whether they appeal as a matter of course. 

Here’s some stats for you, out of 120 requests for referral to the Grand Chamber, 68 were from governments, 48 from the applicant and four from both parties.  Only seven seem to have been referred, although 16 were still pending at the year end.  At each meeting every few months, they deal with several at a time.  This comes from the ECHR’s Annual Report 2018 (google translate from French):

In 2018, the panel of five judges of the Grand Chamber held eight meetings to consider applications for referral to the Grand Chamber made by the parties under Article 43 of the Convention. The

The College reviewed 120 requests for referral, in 68 cases submitted by the Government, 48 by the Applicant and four at the same time by the

Government and the applicant.

So odds seem stacked 7/104 against.  Or 15/1 against.  If, ceteris paribus, we assume random probablity.

However, this likely won’t be ‘random’ but something with a real chance of being referred by the Admissibility panel.

@Hopeful:  Italy hasn’t paid the €10K yet; it’s pending their request for referral (appeal).  Interesting Knox hasn’t appealed.

Posted by KrissyG on 05/13/19 at 06:20 PM | #

@KrissyG, I agree with every word of your comment. Knox is defined by her power grab over Meredith’s beautiful story. Raf is afraid of a return to the harsh spotlight, but not Knox. She returns to Italy not to heal but to gloat. She better watch out. New DNA breakthroughs may one day reveal her blood all over the knife, in every groove. Raf’s DNA may show up in psychedlic colors along with hers. There may be no further “doubt” about his hammertoe footprint on rug.

New DNA tests may soon reveal indisputable proof that will make Patrizia Stefanoni’s lab equipment look obsolete.

Knox lives with the sword of Damocles hanging over her head. Even if double jeopardy shields her from a retrial, new science may soon reveal all and Knox’s obvious guilt and lies will be headlines in Meredith’s “cold case” solved.

I agree with every word of your comment about the motives and intentions of Knox and her opposite, the reclusive frightened Sollecito. Maybe their motivations were to do “as was done unto you”, the theory of the Birmingham, Alabama shrink, Hodges who seems to say that people reenact any violence or rejection that was first done unto them, I guess a way to balance the psychic scales and set up one’s own justice.

Can you believe the chutzpah of Knox to dare to climb a podium and pretend to teach Italian Innocent conference about justice? She never took a polygraph.

And as KrissyG says, Knox milks the cash cow of this case and the notoriety that has given her a platform to sell her story, which is really Meredith’s story. Meredith paid for the story, fighting back bravely against cowards and thieves who posed as her friends. Betrayal, that’s the theme of the Perugia crime.

Had Meredith not been such a wonderful woman, the loss had not been as large nor the story so poignant.

Posted by Hopeful on 05/14/19 at 04:54 PM | #

So true @Hopeful.  Some people are like that for no reason at all.  Mom Edda is a maths teacher, Dad an accountant.  OK he yells and refuses to pay maintenance.  However, I can’t imagine Knox suffered any childhood abuse.  Nearly half of kids today come from a broken home or a single home.  I cannot see anything to excuse the pair.  Raff’s Papa is a medical doctor of urology.  So his Mama was abandoned by his Papa and he went to a boarding school for orphaned children of doctors.  I dare say under his angelic choirboy cassock and ruff he was seething at the rejection.  Like many teenagers he went off the rails as did Knox experimenting with drugs and rebellious stuff which he posted to FB.  None of this really explains why they did it, IMV. 

One was the catalyst for the other - the enabler, like Leopold and Loeb or Hyndley and Brady, they ignited and disinhibited something evil in the other.  No reason.  Like Brenda Spencer who shot her classmates because she didn’t like Monday, I expect the pair, together with Guede, were simply ‘bored’ that night.

Posted by KrissyG on 05/14/19 at 06:37 PM | #

“She never took a polygraph”. Hmmmm. That would fit nicely on a placard…

Here is more ammunition on Italy’s ECHR counter-appeal on its way to the Rome Ministry for its consideration.

It was Machiavelli here years ago who explained to us the difference in Italian law between (1) questioning a person with possible useful information and (2) a full formal interrogation. We used that again and again in our Interrogation Hoax series.

Massei knew this. Hellman to some extent accepted Knox’s false claim. The Chieffi court shot it down (see quote below). The Nencini and Marasca courts mostly ignored it,

BUT “INTERROGATION” IS ALL OVER THE BONINSEGA REPORT presumably from Dalla Vedova.  And so ALL OVER THE ECHR REPORT!! As KrissyG above summarises:

The ECHR relies heavily on police minutes and the fact interpreter Donnino and a police office, RI, fail to record details of their expressions of familiarity with Knox, or make a note that (i) Knox was asked if she wanted a lawyer and declined, (ii) that start and end times are not recorded, and that (iii) hours are condensed into minutes.

Again, these are rules for INTERROGATION and not what Knox was doing with Ficarra, just building a list of others. 

So the ECHR “find” Italy broke the rules for interrogation - when there was not even an interrogation.

No wonder ECHR felt some award to Knox from Italy was justified.

Here is the 2013 Cassation (Chieffi) report quoting Luigi Riello in correctly ramming the point home:

It must be considered, [argues the Prosecutor General], that it was Ms Knox who went – by choice – to the police station to accompany Sollecito; that what the Hellman Court of Appeal calls interrogations were none other than preliminary investigation interviews [with the Judicial Police], to which the young woman was subjected without any coercion whatsoever; the naming of Lumumba was absolutely not suggested by the police, who merely asked Ms Knox whether she had replied to the message that he had sent her, that her phone showed she had received, and to the young woman’s negative response it was put to her that [her telephone showed] that a reply was in fact given.

Posted by Peter Quennell on 05/16/19 at 06:41 AM | #

We hear that the ECHR will also be told that under Italian law Knox had no automatic right to a lawyer at all, as she did not confess or implicate herself.

And further to the para in the box just above, Knox didnt just cold-bloodedly finger Patrick in the hope that she could go right on home.

In fact she was difficult to shut up - for the next three hours - and she repeatedly hit her head (and she did similar at the house 2 days later.)

The two written statements of 1:45 and 5:45 were at Knox’s insistence; they did not have to be done, or at least not right away (Rita Ficarra wrote her version late in the day) though she still wailed on.

Major sign of a bad cocaine high, the major cause of Meredith’s death, too?

It’s not just the prosecutors and police who have this hunch, one of Sollecito’s defense lawyers at trial said Knox was on coke too.

My guess? Knox gas ZERO valid memories of that entire week.

Posted by Peter Quennell on 05/21/19 at 11:20 AM | #

Even worse for Knox. The ECHR can only RECOMMEND. It cannot demand.

So the Italian government is perfectly free to never pay Knox that recommended award. Quite regardless of what happens next.

Posted by Peter Quennell on 05/21/19 at 01:06 PM | #

So whither Brexit?! Anyone care to advise us?

At first glance from afar, the apparent sweep by the “leave” party Brexit falls far short of the combined votes for the “remain” parties, the Lib Dems, Greens, Plaid Cymru, Scottish National Party, and Change UK, and the majority of Labor that favors remain, which add up to almost double.

Conservative votes were down by the floor somewhere. Hard to see a new Conservative Prime Minister wanting to face an election. Hard to see a hard Brexit exit now with no EU connection, and equally hard to see an exit without a new referendum with this time “remain” winning.

Do I come close?

Posted by Peter Quennell on 05/27/19 at 08:20 AM | #

On to a less controversial subject! The ending of “Game of Thrones” which a few weeks ago I recorded the whole series of and have watched the first half of.

Little or nothing about systems building or development, no surprise there I guess, but the one I would put my money on so far to take Westeros in that direction would be Daenerys.

I know she gets bumped off in the final episode (hard to miss the reporting here), and a mystic sure to be the pawn of the corrupt power-brokers finds himself top-dog.

Good luck with that one.

Of the half a dozen alternative outcomes I checked out so far this one by the very smart Matthew Yglesias, with Daenerys is charge, seems to me to promise most development and in the long term real democracy.

https://www.vox.com/culture/2019/5/26/18637091/game-of-thrones-targaryen-restoration-daenerys

 

Posted by Peter Quennell on 05/27/19 at 08:32 AM | #

Happy Memorial Day to those in USA.  May 27, 2019

Posted by Hopeful on 05/27/19 at 07:09 PM | #


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Or to previous entry Major Surprise And Setback For Knox: Italy Now Challenges Knox’s “No Lawyer” ECHR Award #1