Subject area: Prosecution critique

Tuesday, September 08, 2015

Court Filing Suggesting 5th Chambers Encroached Illegally On 1st Chambers & Florence Court Powers

Posted by The TJMK Main Posters





This opinion was drafted by several of Italy’s most experienced lawyers and it was filed with the Florence court several months ago.

These passages quoted below raise issues of what the Fifth Chambers under the Penal Code legally can and can not do, with respect to prior rulings of (1) the Supreme Court (the First Chambers which mostly overturned Hellmann in 2013) and (2) the Florence appeal court.

According to this opinion, the Fifth Chambers has significantly overstepped its legal boundaries in brushing aside previous rulings and trying to fulfill the role of an appeal court, or a first-level trial court (the same stretch the First Chambers considered the Hellmann appeal court to have been indulging in). 

This is uncharted territory. Judges of the First Chambers and Florence court and the Council of Magistrates all seem likely to side with this seemingly watertight opinion, and so reactions could ripple on for years.

The Fifth Chambers judges might find themselves increasingly beleaguered. And their rulings on evidence items and the investigators and prosecutors and foreign media would all seem to be moot, if the perception grows that the Fifth Chambers should not even have gone there.

the judgment of the [Florence] court remitted to would have been impugnable only for reasons not regarding the points already decided by the Court of Cassation, according to the very clear disposition of Article 628, second paragraph, Criminal Procedure Code. From this it follows that the Fifth Chamber of the Supreme Court, called on to decide the merits of the appeals brought by the accused against the decision of the court remitted to, would have had to consider as inadmissible the appeals presented in violation of the second paragraph of Article 628 Criminal Procedure Code and, in any case, would have had to rigorously conform with the points already decided by the First Chamber and with all the questions of law decided by the same…

the Court of Cassation cannot, therefore, ever adopt decisions on the merits and issue orders of acquittal under Article 530, second paragraph, Criminal Procedure Code.

...two chambers of the same Court of Cassation, the First (the one competent for proceedings in homicide matters, whose decision of annulment is definitive and who had identified and decided questions of law in a definitive and un-retractable manner) and the Fifth (who would have had to decide the appeals presented only on grounds of legitimacy of the defendants’, constrained by what had already been definitively decided by the First) have handed down two absolutely divergent decisions and the second had annulled the Florentine decision, positively excluding any remitting to another court and acquitting the defendants pursuant to Article 530, second paragraph, Criminal Procedure Code.

the judgment of the [Florence] court remitted to would have been impugnable only for reasons not regarding the points already decided by the Court of Cassation, according to the very clear disposition of Article 628, second paragraph, Criminal Procedure Code. From this it follows that the Fifth Chamber of the Supreme Court, called on to decide the merits of the appeals brought by the accused against the decision of the court remitted to, would have had to consider as inadmissible the appeals presented in violation of the second paragraph of Article 628 Criminal Procedure Code and, in any case, would have had to rigorously conform with the points already decided by the First Chamber and with all the questions of law decided by the same…

the Court of Cassation cannot, therefore, ever adopt decisions on the merits and issue orders of acquittal under Article 530, second paragraph, Criminal Procedure Code.

...two chambers of the same Court of Cassation, the First (the one competent for proceedings in homicide matters, whose decision of annulment is definitive and who had identified and decided questions of law in a definitive and un-retractable manner) and the Fifth (who would have had to decide the appeals presented only on grounds of legitimacy of the defendants’, constrained by what had already been definitively decided by the First) have handed down two absolutely divergent decisions and the second had annulled the Florentine decision, positively excluding any remitting to another court and acquitting the defendants pursuant to Article 530, second paragraph, Criminal Procedure Code.

from these starting points in fact and in law which are absolutely undeniable, it emerges that the course of proceedings in this case have been absolutely linear and respectful of the substance of the procedural rules up to and including the Florentine decision.

the Court of Cassation, on the appeal of the Prosecutor-General of [the Perugia] district Court, had in a radical and definitive manner annulled the acquitting pronouncement and had remitted it to the Florentine district court because the same would adopt the consequent decisions of merit in the line of reasoning of the principles of law laid down by the First Chamber of the Supreme Court and of the points decided by it.

These principles of law are by now unmodifiable and unarguable: the [Fifth Chambers] , called on to decide the matter, as a “second opinion”, concerning the appeal of the defendants from the [Florence] judgment below, would have had to hand down a judgment fully within the “railway tracks” of the law, as fixed by the First Chamber, like the Florentine district court did, principles from among which we may cite:

[Umodifiable principle] the principle, in fact the unfailing legal prerequisite of a Supreme Court decision, namely the fact that the Court is precluded from “trespassing into a re-evaluation of the compendium of evidence” (see the judgment of the First Chamber at page 40);

[Unmodifiable principle] the principle of law of the total and holistic evaluation of the probative material, as opposed to the “parcelled-up and atomistic evaluation of the pieces of circumstantial evidence, taking them into consideration one at a time and discarded in terms of their demonstrative potentiality”, which characterised instead, in the negative, the decision of the Court presided by Pratillo Hellmann (see the decision of the same First Chamber at pp. 40 and 41… ). The ancient brocard “Quae singula non probant, simul unita probant” [‘Those which alone do not prove, together do prove’], quoted on p 41 of the First Chamber’s judgment, consecrates in a definitive and unmodifiable manner this requirement of a global and holistic approach in which each individual piece of the jigsaw puzzle of reconstruction of the facts is considered together with all the others in their demonstrative synergy;

[Unmodifiable principle] the principle by which the [Hellmann] court had run afoul of grave shortcomings and contradictory lines of reasoning and in glaring misrepresentations of the outcome, even in the attempted decoupling of the calunnia, by now definitively attributed to Ms Knox, with the result of masking from view the responsibility of the same in the homicide;

[Unmodifiable principle] the principle according to which the testimony of the homeless person Mr Curatolo ought to have been evaluated on the basis of corroboration between his statements and the objective and unarguable circumstances emerging from the trial (such as the fact that the witness had with absolute decisiveness anchored the fact of having seen the two accused in the precincts of the basketball courts of Piazza Grimana, nowadays Piazza Fortebraccio, the evening before the arrival, the following day, at the Via della Pergola house of the men from Forensics in their white coveralls), rather than on the basis of Mr Curatolo’s social conditions and lifestyle (see the cited judgment of the First Chamber at page 50);

[Unmodifiable principle] the principle according to which the definitive conviction of accomplice Rudy Hermann Guede ought to have been taken into account (no. 7195/11, published on 16.12.2010, it also from the First Criminal Chamber of Cassation), Guede having been held to have been extraneous to the simulation of burglary of a house. [A] habitation that, on the night of the murder, was solely at the availability of the victim and of Amanda Knox and from the statements made by the same Rudy before the Perugian district court, according to which Meredith was killed by the two co-accused (see the judgment at pages 55 and 56).

[Unmodifiable principle] The principle by which contamination of the evidence is to be proved by the party invoking it and which, on the facts of the case, no evidence in support had been offered and which the [Hellmann} Court had seriously confused the abstract possibility of the fact with the averment of the fact (see the judgment at page 69).Umodifiable principle] The principle according to which it was a matter of a homicide committed by multiple persons, in concourse amongst themselves (see page 73 of the cited judgment).

Here is a translation of Article 530:

Article 530:

1. If the act does not subsist [541 2, 542], if the defendant has not commited it [541 2, 542], if the act is not an offence or it is not envisaged by law as an offence, that is, if the offence has been committed by a non-indictable person [c.p. 85] or by a not punishable person for other reasons, the judge issues a judgement of acquittal, stating the reason. 

2.The judge issues a judgement of acquittal also when there is lack of evidence or it is not sufficient, or there is contradictory evidence that the act subsists, that the defendant has comitted it, that the act constitutes an offence or that the offence has been committed by an indictable person.(1).

3. If there is evidence that the act has been committed in circumstances of a legal excuse or exemption from criminal liability, that is, there is doubt about them, the judge issues a judgement of acquittal pursuant to clause 1.

4. In the event of an acquittal the judge applies security measures, in the cases provided for by law.

And here is a translation of Article 628:

Impugnability of a ruling issued by a judge after remand

1. A verdict that had been issued by a court following a Cassation order of remand, may be impugned through a recourse at Supreme Court of Cassation if the ruling was issued on an appeal instance, and through the mean provided by law if was issued on a first instance level.

2. In any case a verdict issued by a court following a Cassation order of remand may be appealed only on the reasons that do not concern those that had already been decided by Cassation on the order of remand, or for not abiding to disposition of art. 627 paragraph 2.


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