Justice Systems Comparisons #5: How Appeals Differ in Italy and Common Law Countries

Posted by Chimera




1 Series And Post Overview

Meredith’s case generated enormous amounts of legal confusion and false statements around the world.

This was particularly so in the United States, and some of the confusions were by American lawyers.  We have Curt Knox and the now-defunct Marriott-Gogerty PR firm in part to thank for that. But also part of the misunderstanding comes from the differences in the Italian criminal procedures v.s. the US procedures which derive from English Common Law.

Of course, Knox/Mellas/Marriott have had a vested interested in ensuring that these differences are not made clear. Although it has antecedents in Roman law and French law, Common Law emerged distinctively in England back in 1215 when King John was made to sign the Magna Carta codifying a number of popular rights and of course reducing the king’s powers.

Note: I write this based on my experience in Appellate Court in Ontario (I’m Canadian).  However, the process is similar throughout Canadian Provinces (with minor variations), and I imagine throughout UK and US.  If anyone in other countries has some insight or experience to share, please do so.

Previously in this series: Part #1: An Overview. Part #2: Public Mischief and Perjury. Part #3: Bail, Extradition & Other Crimes. And Part #4: Canada and the U.S.A. (Part 1).

2. The Appeals Process in Common Law Countries

TERMINOLOGY:
  • Appellant—The Party that initiates the Appeal, regardless of who was who at the trial
  • Respondent—The Party that receives the Appeal, again, regardless of who was who at the trial
  • Cross Appeal—The Respondent has the right to launch their own, think of it as a counter appeal
  • Leave to Appeal—Permission to appeal, in some cases it must be granted
  • Proof of Service—Means filing an Affidavit of Service (Form 16-B), with the Appellate Court
  • Back Cover—is a back page put in all submissions (Form 4C)

The decision is handed down by the Court.  For minor criminal matters it is a Bench Trial (trial by Judge alone); for major crimes the Defendant has a choice of a Judge alone or Jury Trial.  In criminal cases, even though the Jury may vote to convict, the Judge will impose the sentence—for every crime except 2nd degree murder, the jury votes on that.  Afterwards ....

Option 1: If leave is needed, it must be granted in order to file.  This is usually for (a) 2nd level appeals; (b) To get Court Orders put in hold; (c) To Appeal prior to a final decision [Rule 62.01]

Option 2: If leave is ‘‘NOT’’ required, then just file notice.

Within the time limit—usually 30 days from the Lower Court ruling—serve a Notice of Appeal (Form 61-A), and file with the Appeal Court.  [Rule 61.04]

If the Appellant intends to submit evidence, then the Appellant’s Certificate Respecting Evidence (Form 61-C) must be served on the other side then filed with the Court.  This is actually optional.  [Rule 61.05]

[15 days after Notice of Appeal] If the Respondent intends to cross appeal, as in launch their own challenge, then Notice of Cross Appeal (Form 61-E) must be served then filed with the Court.  [Rule 61.07]

[15 days after Notice of Appeal] If the Respondent has their own evidence to submit, then the Respondent’s Certificate Respecting Evidence (Form 61-D) must be served then filed with the Court.

[30 days after Notice of Appeal] If a transcript is required, a Certificate of Ordering (proof a transcript has been ordered) must be filed with the Appellate Court [Rule 61.05(5)]

Option 1: If no transcript is required—Appellant must file appeal books within 30 days of Notice of Appeal

Option 2: If a transcript ‘‘is’’ required—Appellant must file appeal books within 60 days of Transcript being completed

In either case, the Appellant must include a Certificate of Perfection

[60 days after Certificate of Perfection Filed] Respondent must submit all books (and cross appeal if one was filed) to the Appellant and the Court

BOOKS TO BE SUBMITTED

[Rule 61.09] and [Rule 61.12] (by Both Sides):

(Mandatory) Appeal Book and Compendium—a collection of various documents and decisions related to the case   [Rule 61.10(1)]

(Mandatory) Factum—this is your ‘‘legal arguments’‘, and usually restricted in length, unless permission given   [Rule 61.11(1)]

(Optional) Exhibit Book—If there was some evidence that the Appellate Court should consider, it gets included here   [Rule 61.10.1]

(Optional) Transcript—If there was reversible error at trial, or in another hearing, it gets sent.  It can be stand alone, or included in the exhibit book

(Optional) Book of Authorities—If there is an error of law, a collection of decisions, a case book, is sent

Note: Factum and Compendium are required by both Appellant and Respondent.  The others may be included, depending on the type of appeal being argued

Note: There is flexibility with the formatting of the Authorities book, and the timing.  It may be sent much later, and cases just downloaded from the internet.

Note: The Appellate Courts are even strict about the colours of the book covers.  They are

  • (Buff)—Appellant’s Appeal Book and Compendium, Appellant’s Exhibit Book
  • (White)—Appellant’s Factum, Appellant’s Book of Authorities
  • (Buff)—Respondent’s Compendium, Respondent’s Exhibit Book
  • (Green)—Respondent’s Factum, Book of Authorities
  • (Red)—Transcript of Evidence
  • (Blue)—Motions filed in the matter
BEFORE THE APPEAL IS HEARD:

While everyone is entitled to ‘‘file’’ an appeal, there is no guarantee the appeal will actually be ‘‘heard’‘.  If the appeal is truly without merit, it will be thrown out before it is fully heard.

One such option (at least in Ontario), is to invoke Rule 2.1.01(6) and ask that the Appeal be dismissed, or grounds it is frivolous, vexing, or an abuse of process.

https://www.ontario.ca/laws/regulation/900194

AT THE ACTUAL APPEAL:

Depending on the Court, it may be a single Judge, a Panel of 3, a Panel of 5, or a Panel of 9 Judges.  These are actual Judges, with years of experience.  In the Provincial High Courts (Ontario Court of Appeals, BC Court of Appeals, Alberta Court of Appeals ....) it is usually 3 Judges who will hear the case.  The Supreme Courts (at least of Canada and the U.S.) are composed of 9 Judges.

The Appeal (and any Cross-Appeal) is restricted to the points raised in the Notice of Appeal/Cross Appeal.  Nothing else may be argued.

The Appellant goes first, explaining what was wrong with the trial, with references to various books.  The Judge (or panel of Judges) may interrupt at any time.

The Respondent goes second, countering the Appellant.  Again, the Judges may interrupt at any time.

The Appellant gets a rebuttal, not a rehash, but to refute anything the Respondent said, or to being in new points.

The Judge (or Panel) may immediately rule, but more likely will reserve its decision, and rule later.

The parties themselves do not address the Court (except for those self-representing), and no witnesses are called.

If (in criminal appeals), the Defendant does not show up, an arrest warrant would be issued, and the appeal likely dismissed out of hand.

With rare exceptions, an appeal hearing takes only a few hours.  Not weeks or months.

POSSIBLE OUTCOMES:

(1) The Appellate Court ‘‘corrects’’ the Lower Court ruling

(2) The Appellate Court ‘‘sends back down’’ the case to the Lower Court, with specific instructions

(3) The Appellate Court dismisses the Appeal

The Appellate Court has wide discretion in how long they make their ruling.  It could be a single sentence confirming the Trial Court, or up to dozens of pages explaining a decision for either side.

USEFUL LINKS:

https://www.ontario.ca/laws/regulation/900194
http://ontariocourtforms.on.ca/en/rules-of-civil-procedure-forms/
https://www.attorneygeneral.jus.gov.on.ca/english/courts/divisional/Guide_to_Appeals_in_Divisional_Court_EN.html
http://www.ontariocourts.ca/coa/en/info/howto.htm

3. Contrast This with Criminal Appellate Trials in Italy

The Jury (composed of 2 Judges and 6 Lay Judges) hands down a verdict, and a sentence to go with it.  By Contrast, in Common Law, a Defendant may be convicted but not sentenced for several months.

[90 days after sentence] The Trial Court hands down a ‘‘Motivation Report’’ explaining in great detail the decision.  In serious cases, this may be hundreds of pages.

[45 days after Motivation Report] The ‘‘Losing Side’’ files an appeal with an Appellate Court

Even if the appeal grounds are extremely weak, the Appeal can still go ahead.

The Appellate Trial is then scheduled.  Like the Trial Courts, it is a panel of 2 Judges and 6 lay Judges.  Although it functions as a trial, it is not meant to be a ‘‘re-start’‘, but rather a ‘‘continuation’’ of the earlier proceedings.

The Judges decide how much (if any) of the evidence submitted by the Prosecution and Defence will be heard.  If the Prosecution has thoroughly proven its case at trial, there may be no need to submit any new evidence.  In the case of AK/RS, Prosecutors Mignini/Comodi had overwhelmingly convinced Judge Massei (2009) of guilt.

http://www.truejustice.org/ee/index.php?/tjmk/C443/

The Defendants may address the Court (Spontaneous Declarations), or they may agree to actual questioning (Cross Examination).  In this case, AK/RS gave several speeches at the Hellmann Appeal (2011), but neither agreed to actually be questioned.  At the Nencini Appeal (2013/2014) RS gave speeches but again refused to be questioned.  AK didn’t show up at all.

To be fair, the reason AK/RS may have refused questioning at the Hellmann or Nencini appeals may have been due to the trainwreck with Judge Massei

http://www.truejustice.org/ee/index.php?/tjmk/comments/italy_shrugs_why_the_defendants_testimony_seems_to_have_been_a_real_fl
http://www.truejustice.org/ee/index.php?/tjmk/comments/this_testimony_does_not_seem_to_have_gained_much_traction_here_in_ital

Neither AK nor RS were obligated to attend the Florence Appeal in 2013/2014, but they should have.  It is rude and contemptuous to skip out of the Court deciding your future.  AK hit the media circuit claiming to be afraid, while also arguing that she couldn’t afford to go back (despite a $3.8 million book deal).  RS showed up sometimes, but it interfered with his suntanning abroad.

http://www.truejustice.org/ee/index.php?/tjmk/comments/questions_for_knox_how_do_you_explain
http://truejustice.org/ee/index.php?/tjmk/comments/multiple_ways_in_which_amanda_knoxs_email/
http://www.truejustice.org/ee/index.php?/tjmk/comments/The_Nencini_Email_Why_This_May_Be

Although new evidence may be submitted, there are still restrictions about bringing in expert testimony, as it should properly be done at the trial level.  Cassation (2013), was highly critical the Judge Hellmann let Conti and Vecchiotti appear.  This is to say nothing of their actual reports.

http://www.truejustice.org/ee/index.php?/tjmk/comments/the_hellmann_zanetti_appeal_courts_dna_consultancy_looks_even_worse

Both the Prosecution and Defence are then able to make a Summation of facts for the Appellate Court to consider.

What needs to be said is that the goal is not to ‘‘prove all over again’‘, but to determine if there were sufficient errors, and/or sufficient new evidence to overturn the trial verdict.

A verdict is handed down, either confirming or overturning the Trial Court ruling.  The Appellate Court of Hellmann/Zanetti (2011) overturned the Massei Trial Conviction (2009), while the Appellate Court of Nencini (2014) confirmed Massei’s original ruling, but with a small sentence increase.

The actual Appellate Trial may take place over several months.  With Judge Hellmann (2011) it was 20 sessions that took nearly a year, and with Judge Nencini (2014) it was 10 sessions, which took 4 months.

(90 days after verdict) The Appellate Court must submit their own Motivation Report, which will be scrutinized

4. Other TJMK Posts Of Relevance

http://www.truejustice.org/ee/index.php?/tjmk/comments/first_italian_criticisms_of_the_hellmann_verdict_statement_now_startin
http://www.truejustice.org/ee/index.php?/tjmk/comments/dissecting_the_hellmann_report_1
http://www.truejustice.org/ee/index.php?/tjmk/comments/dissecting_the_hellmann_report_2_how_judges_zanetti_and_hellman_tilted_
http://www.truejustice.org/ee/index.php?/tjmk/comments/reasonable_doubt_in_italian_law
http://www.truejustice.org/ee/index.php?/tjmk/comments/weighing_the_ten_points
http://www.truejustice.org/ee/index.php?/tjmk/comments/Perugias_excellent_umbria24_posts_details
http://www.truejustice.org/ee/index.php?/tjmk/comments/appeal_session_1_more_results_
http://www.truejustice.org/ee/index.php?/tjmk/comments/appeal_session_3_sollecito_in_court_with_family_lawyer
http://www.truejustice.org/ee/index.php?/tjmk/comments/appeal_session_9_sollecito_team_concludes_prosecutor_crini_rebutts_def
http://www.truejustice.org/ee/index.php?/tjmk/comments/what_we_might_read_into_sollecito_lawyer_giulia_bongiornos_final_arguments
http://www.truejustice.org/ee/index.php?/tjmk/comments/defense_dirty_tricks_did_we_just_see
http://www.truejustice.org/ee/index.php?/tjmk/comments/highlights_of_the_nencini_report_1_the_attention_directed1

5. Some Final Thoughts

The ‘‘Appellate Trial’’ as known in Italy, does not have an equivalent in the Common Law Countries.  To be fair though, the Italian Supreme Court hearings (Corti di Cassazione) do resemble Common Law appeals in that they are fairly short hearings restricted to arguing various points of law.

The goal of the ‘‘Appellate Trial’’ is to give the Defendants a huge amount of rights (including re-opening the case) not afforded in Common Law Countries.  Even after going through a full trial, it is an opportunity to re-examine much of the case.

The ‘‘jury’’ of Appellate Trials not the ‘‘Panel of Judges’’ that many would think out here.

http://www.truejustice.org/ee/index.php?/tjmk/comments/rogue_juror_genny_ballerini_a_sure_sign_oggi_sees_its_conviction

The option to testify (and especially to give Spontaneous Declarations) in an Appeal is unheard of in Common Law Appeals.

However, both in Italy and in the Common Law, it is illegal to make false accusations or to sabotage the Court process.  AK doesn’t seem to have learned.

Weak appeals in the Common Law would be thrown out at the preliminary stages, in Italy the burden seems to be much lower.

The Trial and Appellate Trial Courts in Italy seem to go much more into detail about why they make their rulings.

While it is normal to have a Common Law Appeal in just 1 day, the decision may be reserved for months.  Contrast this with an Italian Appellate Trial, which takes place over months, but the verdict is handed down at the end.

This article is not meant to knock Italy in any way.  There are valid reasons for how things are done.  But without living in both regions, or having lots of exposure to both, few would know about these differences.

*****

Author’s Note: Pardon my lopsided detail when it comes to describing the process in Canada, as opposed to Italy.  If someone would like to come up with a more detailed version for Italian Appeals, it would go nicely.


Posted by Chimera on 04/17/16 at 05:38 PM in Justice systemsItalian systemOther systems


Comments

A lot of information here, but to whittle it down:

(a) Appellant files Notice; and Evidence List (optional)

(b) Respondent files Notice of Cross Appeal (optional); and Evidence List (optional)

(c) Appellant files appeal materials

(d) Respondent files appeal materials

(e) Appeal date is booked

(f) Appeal is argued

(g) Decision either right away, or made later

Posted by Chimera on 04/19/16 at 11:15 AM | #

Very interesting, if dry, read Chimera. A really useful aid for understanding why what happens in Italy, happens in Italy.

Incidentally, it’s not just making false allegations or sabotaging court processes that Knox hasn’t learned not to do. Her latest blog piece sees her still calling herself an exoneree rather than the accurate “guilty but not quite enough evidence to formally convict so you free but with a stain forever on your character”.

She’s obsessed about people judging her but that’s only because she knows that those who judged her as a psychotic, infantile, loose knickered, murdering little tramp, got her absolutely spot on.

I glean from her article that she’s working in a book shop now. Seems her stellar career continues to crash into oblivion at an ever increasing pace. Methinks she’ll end up in the “high class hooker” trade before long (minus the class, of course).

Or “hocking her mutton” as we call it in Scotland.

Posted by davidmulhern on 04/22/16 at 12:05 AM | #

How did I miss this? A website called True Crime podcast says that an Italian foundation has proposed a concert for Meredith as part of an event scheduled for June 20, 2016 to highlight significant moments in Perugia’s history.

Meredith will be front and center! The President of the Foundation is Virgilio Ambrogliani. The plans are tentative, depending on finances, but they want to add Meredith to the Golden Book of the city of Perugia. The Golden Book or “Libro d’Oro” is the official registry of honored citizens and nobility, as in the Golden Books of Rome and Venice.  (all this direct quotes from True Crimes podcast site)

Also to honor Meredith they want to have a concert with musicians from Italy and Britain who will perform together. That would be marvelous, music and dance seemed to be Meredith’s passions second only to reading and academics. I’m thrilled for her to be memorialized in such grandeur.

The photo was a huge headshot of a golden Meredith, with a large white candle burning in front of her picture. On the top rim of candle were the words R.I.P. Meredith Injustice in Rome 27.3.2015….to recall the date of the Supreme Court acquittal of her likely killers.

Other recent posts mentioned in the link to the right of this story were:

“Amanda Knox and her Ex: Enough is Enough” April 7, 2016

“20,000 sign petition to Stop Amanda Knox Ex from Being on TV”  April 12, 2016

“Did Amanda Knox have Stimulant Psychosis like Joran Van der Sloot?”  March 17, 2016

Posted by Hopeful on 04/24/16 at 04:47 AM | #

Cheers for this Hopeful, I wasn’t aware of this site either. I’ve attached a link below for anyone interested in popping over for a look.

https://truecrimespodcasts.com/2016/03/25/meredith-kercher-honored-in-perugia-italy/

Posted by davidmulhern on 04/24/16 at 08:14 AM | #

From The Daily Beast

http://www.thedailybeast.com/articles/2016/04/26/the-very-strange-extradition-of-a-cia-spy.html Christopher Dickey/Barbie Nadeau April 26, 2016

***

“The CIA Kidnapper Facing Jail in Italy

The 2003 ‘rendition’ of Abu Omar from Italy’s streets to Egypt’s torture cells was a notorious CIA op. Will Sabrina De Sousa be jailed for it?

“At the time of the kidnapping, De Sousa reportedly was working as a multi-lingual interpreter, and the Italian court claimed that she was instrumental in finalizing the arrangements for Abu Omar’s torture in Egypt. She was already in the United States in 2004 when the criminal case against her began.

The convictions of all the Americans were upheld by Italy’s highest court in 2012, although no one has ever served a day in prison for the crime. Nor has anyone yet paid Abu Omar €1 million ($1.13 million) and his wife half that sum for their suffering, as ordered by the Italian courts.

Paradoxically, the Italian criminal court eventually convicted Abu Omar on terrorist conspiracy charges from before his abduction, but that trial, too, was conducted in absentia. He was released from prison in Egypt, is reportedly still living there, and nobody expects he will be extradited.

The case has caused tensions between Italy and the United States over the years. In 2015, Italy’s President Sergio Mattarella pardoned two of the operatives, Castelli and the commander of the U.S. Air Force unit that flew Abu Omar out of Italy, and shortened the sentence of Lady ahead of Mattarella’s state visit to Washington. He also pardoned the Italian agents involved in the case. And, perhaps more importantly, Italy has never pushed for the extradition from the United States of any of the American operatives, a fact seen as a compromise gesture.

So, why now for De Sousa?

In 2015, De Sousa, a naturalized American who was born in India and who has a Portuguese passport (her family is from the former Portuguese colony of Goa), defied warnings by the U.S. State Department not to travel to Europe, where she could be picked up on a European arrest warrant and sent to Italy to serve the prison term.

It’s not like De Sousa didn’t know the risk. Indeed, in 2009 after the Italian conviction she filed a lawsuit against the U.S. Central Intelligence Agency, former Rome station chief Castelli, her former boss Robert Seldon Lady, the State Department, and then-Secretary of State Hillary Rodham Clinton, alleging that they had failed to protect a loyal public servant.

De Sousa told us in 2009 she was “saddened, dismayed, and angered that the government I served abandoned me completely and I am being punished for conduct I did not do.”

Posted by Ergon on 04/26/16 at 10:24 AM | #

WTF, Italy?

http://www.tempi.it/irragionevoli-elaborazioni-su-fatti-mai-verificatisi-le-motivazioni-della-condanna-di-de-magistris#.VyCfd3z2aUk

Judge Paolo Bruno who recently was awarded compensation for being wrongfully charged with ‘association with the mafia’.

Has now been nominated as President of the Corte di Casazione.

http://www.strill.it/citta/2016/04/csm-nomina-giudice-reggino-paolo-bruno-presidente-di-sezione-della-corte-di-cassazione/

WTF, etc. Not surprised.

Posted by Ergon on 04/27/16 at 02:09 AM | #

Hi Ergon

Thanks on de Souza. We posted earlier on that same case here:

http://truejustice.org/ee/index.php?/tjmk/comments/italian_justice_the_telling_status_of_extraditions_to_and_from_italy/

Our impression which we have mentioned previously is that the Rome Embassy and the State Department were left out of the loop on the CIA kidnapping.

That threatened an important relationship at a time when Italian support for US ventures, for example in Afghanistan, was considered essential.

The leader of the kidnapping operation, Robert Lady, has also been left to dangle.

http://truejustice.org/ee/index.php?/tjmk/comments/the_prospects_in_favor_of_a_possible_fugitive_amanda_knox/

Posted by Peter Quennell on 04/27/16 at 03:11 AM | #

Hi Ergon

Regarding Judge Bruno the compensation for the “unproven” mafia links (always hard to find witnesses to, surprise surprise) has long been in the pipeline.

Latest we have heard on Bruno is that he is more than a little gaga and was used as a useful idiot for the Fifth Chambers outcome. We’ll find out more on this!

Posted by Peter Quennell on 04/27/16 at 03:16 AM | #

Hi, Peter, as it turns out Bruno has merely been appointed President of Section V I believe, no idea what happened to Marasca. Still, it IS a promotion. The President of Cassazione since January 07, 2016 is Giovanni Canzio http://www.cortedicassazione.it/corte-di-cassazione/it/primo_presidente.page

Posted by Ergon on 04/27/16 at 07:20 AM | #

Sources say that judge Marasca retired after the MB report was issued, and Bruno is less than 2 years from retirement, being one of the oldest judges in Section V.

Posted by Ergon on 04/27/16 at 06:59 PM | #


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