Thursday, February 07, 2019

How Knox’s Ill-Advised ECHR Complaint Seems To Now Leave Her Worse-Off

Posted by The TJMK Main Posters



Dalla Vedova and Knox: Tripped up by body of lies?

[Long post. Click here to go straight to Comments]

Overview Of The Post

This post is in two parts. The first part historically frames Knox’s ECHR complaint; the second part by KrissyG goes deep into Italy’s legal position now.

Part One: How The ECHR Complaint Came About

Remember how Knox’s ECHR appeal began.

Post their release by Judge Hellman, the year 2012 was a time of wild highs for Knox and Sollecito who both wrote their books and set out on victory tours - Sollecito late 2012, Knox early 2013.

But in late March 2013, the Supreme Court First Chambers did a rare and very surprising thing.

That court did not merely quibble with aspects of Knox’s and Sollecito’s 2011 appeal outcome (normal practice) or send it back down to Judge Hellman to correct a few minor things in law.

Instead, it more or less wiped the slate clean.

In scathing terms, the First Chambers annulled the 2011 outcome (except for Hellman’s “guilty” calunnia ruling for Knox) and sent it off with some guidelines to a different judge (Nencini) in a different city (Florence), to run Knox’s and Sollecito’s first appeal all over again.

Judge Hellman was forcibly retired.

Throughout most of 2013, in the months before the Florence court convened, though feigning triumphalism, Knox and Sollecito each appeared to be scared out of their wits.

Knox was too frightened to even attend, despite her Italian lawyers flying to Seattle to try to drag her back (the last time they set eyes on her, nearly six years ago). She sent a foolish email to the judge which quite possibly made things worse for her.

For his part, a somewhat more buoyant Sollecito lingered for some months in the Dominican Republics (which had no extradition treaty with Italy) with his unsavory Canadian relatives (who he might have been hoping would offer him a job) but at the last moment (apparently with some arm-twisting by his dad) did arrive back for the court sessions. (He soon took off again.)

As generally expected by followers of the damning 2009 trial, Nencini’s judgment resulted in both Knox and Sollecito going down hard once again. Their sentences were reinstated, and now subject only to the Supreme Court giving the nod.

It was right here in this context that one of Knox’s lawyers, Carlo Dalla Vedova (who is not a criminal lawyer) attempted what Americans call a “Hail Mary pass”. There is no sign that Knox’s other lawyer, Luciano Ghirga, went along with him.

He filed the ECHR complaint, seemingly mainly (as many other Italian lawyers have done) to fire a shot across the bows of the Supreme Court in a bid for leniency. (Separately, Sollecito was trying other measures.)

Dalla Vedova and Knox kept the complaint document to themselves, so nobody had any chance to fact-check it and see whether the claims stood up. Knox followers shared wild fantasies about what the document requested. 

The ECHR “investigation” was very detached from the 2009 trial and its participants and its documents. Many documents we translated and know well seem not even to have been read and understood.

The ECHR’s final report relies very heavily on three very misleading reports: (1) the Knox complaint itself; (2) the Hellman sentencing report - despite it having zero standing; and (3) the Boninsegna report refusing a second calunnia judgment against Knox for wild and damaging claims she had made against some Perugia police headquarters staff. 

The ECHR seems ignorant of many fundamental facts of the case.

For example it seems ignorant of the fact that Knox was flouting a Supreme Court ruling (four years previously) that Knox MUST still pay Patrick an award for damages of about $100,000.

Worse, the ECHR found that it did not matter that the Knox legal process was not yet done because, they claimed, it would be soon.  But, as a direct result of breaking its own rules, the ECHR advanced ignorant of the fact that subsequent to the Knox filing the Supreme Court had rebuffed any ECHR findings against Italy in advance.

From the 2015 Marasca-Bruno Sentencing Report:

2.2. The request of Amanda Knox’s defense aimed at the postponing of the present trial to wait for the decision of the European Court of Justice [sic] has no merit, due to the definitive status of the guilty verdict for the crime of calunnia, now protected [locked in stone] as a partial final status against a denouncement of arbitrary and coercive treatments allegedly carried out by the investigators against the accused to the point of coercing her will and damaging her moral freedom in violation of article 188 of penal procedure code.

And also, a possible decision of the European Court in favor of Ms. Knox, in the sense of a desired recognition of non-orthodox treatment of her by investigators, could not in any way affect the final verdict, not even in the event of a possible review of the verdict, considering the slanderous accusations that the accused produced against Lumumba consequent to the asserted coercions, and confirmed by her before the Public Prosecutor during the subsequent session [ending 5:45], in a context which, institutionally, is immune from anomalous psychological pressures; and also confirmed in her memoriale, at a moment when the same accuser was alone with herself and her conscience in conditions of objective peacefulness, sheltered from environmental influence; and were even restated, after some time, during the validation of the arrest of Lumumba, before the investigating judge in charge.

And even worse! The ECHR seems ignorant of the fact that IF Knox’s complaints of abuse were credible to her lawyers they MUST convey the complaints to the authorities. In fact if they do not, they risk criminal penalties and even being disbarred (and may still do). In fact in 2008 both lawyers publicly announced to the media that Knox should stop telling so many lies and that they never said she was hit.

Without such an initiating complaint, the Republic of Italy can never be at fault. 

But on the plus side for Italy and the very minus side for Knox (1) the ECHR dismissed the Knox claims of abuse (“torture”) that might have shored up any attempt by her to get the calunnia conviction revisited; and (2) prospects for any Knox claim for damages for her 1-4 years in prison are terminally gone.

What DID Knox get out of this? A recommendation to Italy - which can take it or leave it -  for a very tiny award (based on patently wrong claims) which is in any case likely to end up in Patrick Lumumba’s hands!!

As the ECHR ruling is only advisory, Knox cannot argue about it or seek to repudiate it or seek to adjust the suggested award - but the Republic of Italy certainly can.

Part Two: KrissyG’s Analysis Of Where Italy’s Legal Position Now Stands

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: 

(a) 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.

(b) 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.

(c) 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?

ADMISSIBILITY

This takes up the larger part of the ECHR deliberations.  We can see that the dates are out of time and we can see it is keen to ‘get round’ this.  The relatively minor issues of police eagerness to befriend Knox, albeit misguided and improper, has clearly outraged the ECHR.

“I. PRELIMINARY REMARKS

A. The subject of the dispute

108. The Court notes from the outset that the applicant’s complaints relate solely to the criminal proceedings at the end of which she was sentenced to three years’ imprisonment for slanderous denunciation of DL and not to the other proceedings. of which she was the subject.

B. Failure to exhaust domestic remedies in respect of the complaints under Article 6 §§ 1 and 3 (a) and (c) of the Convention

109. The Government submitted that, at the time of the introduction of the application, on 24 November 2013, the applicant’s conviction for slanderous denunciation was not final and that, therefore, this part of the complaint should be declared inadmissible.

110. The Court reiterates that the exhaustion of domestic remedies is assessed, with certain exceptions, at the date of submission of the application to the Court (Baumann v. France, No. 33592/96, § 47, ECHR 2001- V (extracts)).

111. However, it also recalls that it tolerates the completion of the last level of domestic remedies shortly after the filing of the application, but before it is called upon to decide on the admissibility of the application (Zalyan et al. Armenia, Nos. 36894/04 and 3521/07, § 238, March 17, 2016, and Škorjanec v. Croatia, No. 25536/14, § 44, March 28, 2017).

112. In any event, in the present case, the Court notes that the conviction in question was confirmed by the judgment of the Court of Cassation filed on 18 June 2013, at the end of three degrees of jurisdiction, and that the reference to the Assize Court of Appeal concerned only the existence of the aggravating circumstance.
113. In view of the foregoing, the objection raised by the Government must be rejected.”

Was the ECHR application premature?

By the ECHR’s own rules, as stated above, the submission was lodged 24 Nov 2013, when all domestic channels were supposed to have been exhausted.  The calunnia conviction against Lumumba had been finalised through Chieffi & Vecchio Supreme Court 18 June 2013. 

However, the second – and completely separate - case of calunnia brought by the police and prosecutor did not go through Boninsegna until 14 Jan 2015, on whose motivational report Knox and the ECHR heavily rely, over a year later.

Knox was acquitted by Bonisegna, hence, there was nothing for her to appeal against.  Further, Boninsegna had nothing at all to do with the merits of the Lumumba callunia, tried in 2009 and upheld at every stage, even by the egregious Hellmann court, whose judgement was largely expunged.

Why does the ECHR rely heavily on Hellmann and Boninsegna and not the superior Supreme and final court of Chieffi?

Even curiouser, Knox and the ECHR also rely heavily on quoting Hellmann of 3 Oct 2011.  Yet Hellmann was overrided and superseded by the superior Chieffi Supreme Court, finalised 9 Sept 2013.

The ECHR quotes Hellmann at some length, when it surely should have referred to Chieffi.

As an example, the judgment, translated from French, quotes Hellman as follows:

130. The Court observes that, in its judgment of 3 October 2011, [Hellmann] the Court of Appeal also emphasized the excessive length of the interrogations, the applicant’s vulnerability and the psychological pressure suffered by her, a pressure which was likely to compromise the spontaneity of his statements, as well as his state of oppression and stress.

It considered that the applicant had, in fact, been tortured to death, resulting in an unbearable psychological situation from which, in order to extricate herself, she had made incriminating statements in respect of DL (see paragraph 85 (8) and (10) above). ).

Yet the Chieffi Supreme Court in spiking much of Hellman’s lower court judgment writes:

So Knox was in a position, even after an initial although long moment of bewilderment, amnesia and confusion, to regain control of herself and understand the gravity of the conduct she was adopting; at the very least, in the days immediately following her heedless initiative she could have pointed out to the investigators that she had led them in a false direction, availing herself of the support of her Defence team, given that in the meantime she had acquired the status of a suspect.

Her persistence in her criminal attitude (discovered only through her taped conversation with her mother) proves the clear divergence with behaviour that could be interpreted as an attempt at cooperation, as the Defence would have it, and does not lend itself to evaluation as a response to a state of necessity, the very existence of which depends on a condition of inevitability and thus on the non‐existence of any alternatives, so that it cannot even be recognized [as existing] as [her own] erroneous hypothesis.

Neither can the exercise of any right be invoked, given that the right of [self] defence does not extend under the legal system of any constitutional state to the point of allowing one to implicate an innocent person so seriously – it is worth recalling that he [Lumumba] underwent a period of incarceration uniquely and exclusively on the basis of the false accusations of the defendant.

How Material is Knox’ Claim of being denied Legal Assistance?

Having ruled in favour of admissibility, the ECHR ruled that as the nature of Knox’ complaints of being hit and being placed under great duress triggered at least the lowest level of a potential Article 3 complaint, that of degrading and inhuman treatment, Italy should have taken it upon itself to launch an investigation of its own initiative into the allegations made against the interpreter [Donnino] and another officer [RI].  ‘RI’ claimed to have cuddled Knox, stroked her hair and held her hands.  This, the ECHR rules, had the effect of undermining Knox’ dignity and independence of will.

It has several criticisms surrounding this behavior including the fact it is not minuted in the police notes, and nor is the start and end times of the supposed ‘interrogations’ at 1:45 and 5:45.

The serious issue of course though is that of being allowed a lawyer. The ECHR writes of Italy’s defense (‘the Government’)

142. The Government observes that the statements made by the complainant on 6 November 2007 in the absence of a lawyer were declared unusable in relation to the offenses under investigation, namely the murder of MK and the sexual violence perpetrated at against him. However, it states that, according to the established case law of the Court of Cassation (judgments Nos. 10089 of 2005, 26460 of 2010 and 33583 of 2015), spontaneous statements made by a person under investigation in the absence of a defender can in any case, be used when they constitute, as in this case, an offense in themselves. He added that the applicant had the assistance of a lawyer when the first indications of his responsibility for the murder of Mr K appeared.

143. In addition, the Government alleged that the applicant had been sentenced for slanderous disclosure not only on the basis of the statements made on 6 November 2007, but also on the basis of “a multitude of other circumstances”, recalled in the judgment of conviction of the Assize Court of 5 December 2009 (see paragraph 80 above).

144. The complainant submits that she was not informed of her right to legal assistance during her hearings on 6 November 2007, since a defense lawyer was not appointed until 8.30 am that day, and denounces the impact of the use of this evidence on the fairness of the proceedings.

A. Admissibility

145. Noting that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it does not face any other ground of inadmissibility, the Court declares it admissible.
2. Application of general principles to the facts of this case

(a) The applicability of Article 6 of the Convention
(b) 146:

147. The Court notes at the outset that the first question in this case is whether Article 6 § 1 of the Convention was applicable to the facts of the case. It recalls in that regard that, on 6 November 2007, the applicant was heard twice: at 1.45 am and 5.45 am

148. It notes that the two statements were originally collected as part of the police’s acquisition of summary information, during which time the complainant had not been formally investigated.

149. With regard to the statements taken at 1.45 am, the Court reiterates that the guarantees offered by Article 6 §§ 1 and 3 of the Convention apply to any “accused” in the autonomous sense of the term. the Convention. There is a “criminal charge” where a person is formally charged by the competent authorities or where the acts of the latter on account of the suspicions against them have a significant impact on his situation (Simeonovi, cited above). , §§ 110-111).

150. Applying this principle to the present case, the Court therefore wonders whether, at the time of the hearings, the domestic authorities had reasonable grounds to suspect that the applicant was involved in the murder of Mr K.

151. It observes in that regard that the applicant had already been heard by the police on 2, 3 and 4 November 2007 and that she had been tapped. It notes that the facts of the case also show that, on the evening of 5 November 2007, the attention of the investigators focused on the applicant (see paragraphs 12-14 above). She notes that while she went to the police station spontaneously, she was asked questions in the corridor by police officers who then continued to interrogate her in a room where she had been interrogated. subjected twice, for hours, to close interrogations.

152. In the Court’s view, even assuming that these elements are not sufficient to conclude that, at 1.45 am on 6 November 2007, the applicant could be considered to be a suspect within the meaning of its case-law, it is necessary to note that, as the Government acknowledged, when she made her 5:45 statements to the public prosecutor, the applicant had formally acquired the status of a person under indictment. The Court therefore considers that there is no doubt that, at 5.45 am at the latest, the applicant was the subject of a criminal charge within the meaning of the Convention (Ibrahim and Others, cited above, § 296).

(b) The existence of overriding reasons for the restriction of the right of access to a lawyer.

Knox and her lawyers again has a second bite of the cherry and rehashes what was surely res judicata by Chieffi:

2.1.16 ‐ Inconsistency and manifest lack of logic in the reasoning concerning the failure to recognize an aggravating circumstance in the aims underlying the confirmed offence of calunnia. [The Prosecutor General argues as follows:] In upholding the offence of calunnia as charged against Ms Knox, the second instance court ruled out any link with the murder. It was not explained on what basis the court had inferred that the young woman had been stressed by the interviewers and that therefore she had committed the calunnia to “free” herself from the questions of the investigators, seeing that none of the young people who were living in that house, none of Ms Kercher’s friends, and many others in the days immediately following the murder, all of whom were summoned and interrogated, had the insane idea of committing a calunnia to free themselves from the weight of the unpleasant situation.

[43] The objective facts are therefore absolutely irrefutable, as was deemed in both trials; whereas the argument adopted from a subjective point of view, according to which the young woman resorted to extreme behaviour by giving the name of Lumumba only in order to get out of a situation of mental discomfort into which she was driven by the excessive zeal and unjustifiable intemperance of the investigators, cannot be well‐founded given that – as it was ascertained – the accusation of Lumumba was maintained after her first statements and re‐affirmed in the letter, which was written in complete solitude and at a certain distance in time from the first uncontrolled reaction in response to an insistent request for a name by the police. 

JUDGEMENT OF THE SUPREME COURT OF CASSATION OF THE REPUBLIC OF ITALY (PRESIDED OVER BY DR SEVERO CHIEFFI) IN THE MURDER OF MEREDITH KERCHER

Translated from Italian into English by http://www.perugiamurderfile.org 9 September 2013


The whole issue of whether Knox was denied a lawyer, I am sure could be an article in its own right and I know others have strong views on this issue, therefore I shall leave it here to set out the ECHR reasoning.

CONCLUSION

So, we have a heavy reliance on the judgments of Hellmann and Bonisegna, when it seems to me, Hellmann is overrided by Chieffi who upholds Hellmann’s own final conviction anyway and Boninsegna is well past the earliest admissibility date, quite aside from not being directly involved in the Lumumba calumny at all.

Having ruled that objections by Italy can be swept aside, including that of failure to exhaust domestic avenues, the ECHR then goes on to rule on Knox’ lawyer status without proper reference to the latest and highest courts.  I can understand the argument that Italy should itself have investigated the police brutality anyway.  The rest of the reasoning seems misguided in light of what higher courts than those referred to have found. 

Krissy G
28 Jan 2019

Sources

2103 The Supreme Court of Cassation of Italy Sentencing Report

Knox Complaint: The Full ECHR Judgment (English version soon available here.)


Posted by The TJMK Main Posters on 02/07/19 at 02:02 PM in


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