Avrom Brendzel and Nigel Scott set out the reasons why Italy will lose another case in Strasbourg.
The European Court of Human Rights (ECHR) is the court of last resort for defendants in the 47 states of the Council of Europe (CoE) who have been subjected to violations of the rights of defence. It was set up to rule on alleged violations of the provisions set out in the European Convention on Human Rights. If the ECHR rules that the rights of a person within the territory of a CoE state have been violated, that state is required to make amends. CoE member states agree to abide by ECHR rulings because they are treaty signatories to the Convention. Another organization of the CoE, the Committee of Ministers, supervises the remedial measures carried out by the states. Except for certain urgent cases, the ECHR will only consider a case when all domestic remedies have been exhausted.
On November 25th 2013, lawyers representing Amanda Knox, a US citizen from Seattle who was studying in Italy in 2007, lodged an application with the European Court, following the Italian Supreme Court’s confirmation of a criminal slander conviction against her in connection with the Meredith Kercher murder case. The statement that led to Knox’s conviction arose from an interrogation on the night of November 5/6 2007.
Interrogated as a suspect but denied lawyer and independent translator
She explains the circumstances in her blog:
“My slander conviction was based on comments I made regarding Patrick Lumumba… comments that were coerced during a lengthy interrogation by Perugia police shortly before I was arrested in 2007. The interrogation took place in a language I barely spoke, without a lawyer present, and without the police informing me that I was a suspect in Meredith’s murder, which was a violation of my human rights. The police were the ones who first brought forth Patrick’s name saying they knew I was going to meet him the night of Meredith Kercher’s murder which was not true. I have stated many times that my original comments about Patrick were coerced by the police and not true.”
Italy is one of the worst offenders in Europe in terms of human rights violations reviewed by the ECHR. Only Turkey has had more cases against it before the ECHR, and Italy continues to be one of the top four states in current number of pending applications to the ECHR. Repeated negative rulings have not brought about the changes in practices that might have been expected.
There is a lengthy backlog of cases awaiting judgment before the ECHR. Two and a half years after being lodged, Knox’s case has moved forward. The ECHR has issued preliminary enquiries in a public document called a Communication, and Italy is required to respond and provide further information. When the ECHR process of gathering information is complete, the court will weigh the assembled evidence and rule. Based on previous cases, this is likely to take several years.
Independent observers believe, based on ECHR precedents (case-law), that the ECHR is almost certain to rule in Knox’s favour and against Italy. Judgments reached in other cases with similar issues are set out below. They have established clear precedents. Articles and cases are referred to where appropriate.
Summary of relevant case-law (including quotations from ECHR judgments)
1. ECHR review of a case is concerned only with whether or not a Respondent State has respected the provisions of the European Convention on Human Rights and ECHR case-law in its treatment of an applicant; the guilt or innocence of the applicant is not an issue.
2. ECHR examines cases individually with respect to their merits; the details of cases are important; the ECHR considers and seeks to give the appearance of considering the merits impartially and objectively.
3. Access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are truly compelling reasons to restrict this right. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (Salduz v. Turkey, Ibrahim et al. v. the UK). Compelling reasons to interrogate a suspect without a lawyer, as found in Ibrahim et al. v. the UK, would be, for example, the threat of a future terrorist attack which could cause mass casualties. Even in that case, the questioning without a lawyer must be restricted to topics such as the identification of future threats, and information gained in such questioning must not be used to prejudice the rights of the accused at trial.
4. The right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention. In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the Court must examine the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put.
5. The general requirements of fairness contained in Article 6 apply to all criminal proceedings, irrespective of the type of offence at issue. Even persons accused of infamous crimes such as rape, murder, and terrorism are protected under the rights listed in the Convention and detailed in the ECHR case-law, as are those accused of petty theft or making false accusations.
6. A waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver’s importance…. Moreover, before an accused can be said to have impliedly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Thus, a person may not have been considered to have validly waived the right to a lawyer without clear evidence that this was done with full knowledge of the legal consequences and was truly based on the person’s will, and not a result of intimidation or threat.
7. If a person is interrogated in police custody, or if the questioned person’s freedom of action is significantly restricted, and there is no lawyer present to fairly represent the interests of that person, the statements of the person may not be used to convict him of any crime. This holds true whether or not the statements are considered incriminating statements (Aleksandr Zaichenko v. Russia).
8. Statements made by a person under interrogation who was not told of the right to remain silent and warned that the statements could be used against him before the interrogation starts cannot be used to convict him.
9. The Convention is intended to guarantee rights that are practical and effective. Therefore, statements obtained in interrogations that are in reality the questioning of a de facto suspect under the pretense that he is a witness may not be used for conviction (Brusco v. France). The ECHR will not accept the use statements for conviction obtained from the questioning of a de facto suspect as a witness even if the questioning allegedly satisfies legal formalism or domestic law, and certainly not if there is deception by the authorities.
10. When an applicant has been convicted despite an infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position that he would have been in had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if so requested by the person concerned.
A compelling case
These points combine to build a compelling case. Amanda Knox and Raffaele Sollecito were suspects within a day of Meredith Kercher’s body being discovered, according to police testimony. Their phones were tapped immediately and by Saturday November 3rd, the media was being briefed that a woman close to Meredith was a suspect. This was reported in the London Sunday Times dated November 4th.
Amanda Knox was a suspect when lead investigator Edgardo Giobbi ordered colleagues to call her in for overnight questioning along with boyfriend Raffaele Sollecito. Giobbi said: “I gave direct orders to the investigators to bring them in, look I remember it really well, because it was the first time that we carried out a kind of, to do two witness questionings at the same time and I said to go and bring them in, I believe they were in a pizza restaurant. I can tell you with mathematical certainty I remember perfectly to have arranged for this investigative strategy.”
Amanda Knox was a suspect when the interview on the evening of November 5th began at around 10.00pm. Giobbi’s special team that had arrived from Rome helped to carry out the interrogation.
Amanda Knox was a suspect when the interrogators took her phone, checked her messages and refused to give it back.
Amanda Knox was a suspect when she was denied a lawyer and was told that having one would make things worse for her.
Amanda Knox was a suspect when she was hit on the head and called a stupid liar.
Amanda Knox was a suspect when the police conducting the coercive interrogations phoned prosecutor Giuliano Mignini at about 11:30 pm on November 5, 2007 to report that her then-boyfriend, Raffaele Sollecito, was no longer confirming Knox’s alibi for the night of the murder, and at about 3:30 am after Knox had named Lumumba as the murderer, asked Mignini to join them.
Amanda Knox was a suspect long before a statement was written in Italian for her to sign.
Amanda Knox was a suspect for days before she was arrested. Her human rights as a suspect were denied. That is why the European Court of Human Rights will rule against Italy and in her favour.
Source for ECHR case-law: