Carlos Dalla Vedova, Is ECHR Made Aware Italian Law REQUIRES Lawyers To First File Local Complaints?
Posted by The TJMK Main Posters
You are aware of this, right? It is not optional: if Italian clients credibly claim police abuse, their lawyers MUST lodge a complaint.
This is a serious requirement in Italian law, which looks to protect the client while heading off innuendo and frivolous appeals years down the road. Under the principle of infedele patrocinio (betrayal of the interest of the client), if you really believed Knox’s varying claims that she was abused, it seems you’d have no choice but to lodge a formal complaint.
Not only was no formal complaint that we know of ever filed by you, and so no investigation ever begun, summaries of your ECHR case by Cassazione and by ECHR itself make no mention of any process having been followed. They specifically ask you about this.
The ECHR quotes in full a letter to you from Amanda Knox dated 9 November 2007 claiming at length that police abuse explained why she was “confused” at the so-called “interrogation” of 5-6 November 2007.
But the ECHR seems to have not been made aware that you never passed this letter on to any prosecutor or any judge. In fact, you provide it as evidence only now. Why was this not made clear?
And even more daunting for your appeal, your legal colleague Luciano Ghirga at Rudy Guede’s trial late in 2008 specifically said this - in effect, the exact opposite of your current claim.
“There were pressures from the police but we never said she was hit.”
Now the ECHR in its first response to your submission is asking some questions of fact. It has addressed this first question to you.
1. Has the applicant exhausted the domestic remedies available to her to complain about the violation of Article 3 of the Convention, concerning the slaps (scappellotti) allegedly suffered, and under Articles 6 §§ 1 and 3 a), c) and e) and 8 of the Convention?
It appears that no, Knox the applicant never did initiate the formal process to seek a remedy through Italian law. The point is one that ends the ECHR appeal process all by itself if the answer is no.
- (1) because of the obvious status of inadmissibility of the application under the ECHR rules (no domestic remedy was first attempted),
(2) because of its damaging probative value for assessing the credibility of the version of facts provided by the applicant.
You will of course know of the legal provisions under Italian law about which the ECHR may not yet be aware:
- (1) the crimes of beating (cp 581), or physical violence or threat (cp. 610-612) require the victim to file a complaint in order to allow prosecution of the charge, otherwise investigation cannot be initiated;
(2) the Ethics Code of lawyers requires a defence attorney to file a charge if he/she collects a claim by a client under detention, and to properly inform the client about the necessity to file a complaint;
(3) if a lawyer is informed by a client under detention that the same client suffered violence or offence by authorities, and does not take proper legal steps, the lawyer would commit the extremely serious criminal offence of infedele patrocinio (betrayal of the interest of client) besides breaching the Ethics Code;
(4) a defence attorney is also required to object any irregularity of breach of the code that could be suffered by the client, namely, in any particular case, if the applicant’s current claims had been made at the time, the lawyers should have denounced the breach of Procedure Code claiming that a prosecution interrogation had taken place (thus, that would mean breaching the Procedure code that prevents prosecution from questioning a suspect prior to his/her appearance before a judge)
So, in summary, no formal complaint ever seems to have been filed allowing local investigations to begin. And the failure to initiate the procedure for domestic remedy by the applicant on this claim could be a crime under Italian law if Knox had insisted on it.
And it would seem to render the request inadmissible on this point. It also undermines any possible credibility of the claim itself. Regardless of whoever dropped the ball here, lawyer or client, it does not bode well.