ECHR Case Law Relevant to the Amanda Knox & Raffaele Sollecito Case
1. IBRAHIM AND OTHERS v. THE UNITED KINGDOM 50541/08 50571/08 50573/08… 16/12/2014
1.1. Provides a 5-point outline for determining if an interrogation without a lawyer affects the fairness of a trial.
1.1.1. The general legislative framework applicable and any safeguards it contains;
1.1.2. The quality of the evidence, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy; in this respect, improper conduct, notably coercion or ill-treatment, during interrogation and vulnerability of suspects are relevant factors;
1.1.3. Whether the statement was promptly retracted and the admissions made in it consistently denied, particularly once legal advice had been obtained;
1.1.4. The procedural safeguards applied during the criminal proceedings, and in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use;
1.1.5. The strength of the other evidence in the case.
2. SALDUZ v. TURKEY 36391/02 27/11/2008
2.1. The Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” Article 6 § 1 requires that, as a rule, 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 compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6.
2.2. As of 27 Dec 2014, there are 78 cases that cite Salduz v Turkey in the HUDOC database of ECHR, including Ibrahim et al. Of these cases, 66 involved issues of Article 6.1 (right to fair trial) with Article 6.3c (right to legal counsel).
3. PARENIUC v. THE REPUBLIC OF MOLDOVA 17953/08 01/07/2014
3.1. This case is one of 42 ECHR cases alleging police entrapment as of 27 Dec 2014. The Court has found a violation of Article 6.1 where the evidence shows that the applicant had no history of committing the crime before being induced to do so by police inducement or pressure to accept some benefit, such as a bribe.
3.2. From Para. 39 of Pareniuc: This [initial refusal to accept a bribe], in the Court’s opinion, clearly demonstrates that the applicant was subjected to blatant prompting and incitement to engage in the criminal activity of which she was convicted, in the absence of any indication that the offence would have been committed without such intervention.
3.3. The relevance to Amanda Knox’s calunnia case is that she never made any statement or accusation against Patrick Lumumba before her police interrogation Nov. 5/6, 2007, and clearly made an accusation against Lumumba then solely because of police pressure. She began to retract the accusation on Nov. 6, 2007, after the interrogation, and completed the retraction after being allowed access to counsel.
4. SHABELNIK v. UKRAINE 16404/03 9/02/2009
4.1. No pressure to confess should be placed on unrepresented persons even if they do not have the procedural status of suspect during the impugned questioning, and are formally treated as witnesses at that stage.
5. DAYANAN v. TURKEY 7377/03 13/10/2009
5.1. In relation to the absence of legal assistance in police custody, the Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial.
5.2. The Court is of the view that the fairness of criminal proceedings under Article 6 of the Convention requires that, as a rule, a suspect should be granted access to legal assistance from the moment he is taken into police custody or pre-trial detention.
5.3. In accordance with the generally recognised international norms, which the Court accepts and which form the framework for its case-law, an accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned. Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.
5.4. Therefore, in accordance with items 1 through 3 immediately above, Amanda Knox (and Raffaele Sollecito) should have been provided with legal counsel not only during the Nov. 5/6, 2007 interrogation but also immediately after being arrested and jailed on Nov. 6. Furthermore, use of the statements written or signed by Amanda Knox during interrogation or after interrogation but before she had legal counsel to convict her of calunnia is a violation of Convention Articles 6.3c with 6.1.
6. PISHCHALNIKOV v. RUSSIA 7025/04 24/09/2009
6.1. The fact that the police proceeded to questioning the applicant in the absence of counsel occurred neither at the applicant’s suggestion nor at his request. There is no evidence that the confessions made by the applicant during those interrogations were initiated by him. Furthermore, the Court does not rule out that, in a situation when his request for assistance by counsel had been left without adequate response, the applicant who, as it follows from the case file, had had no previous encounters with the police, did not understand what was required to stop the interrogation. The Court is mindful that the applicant may not have had sufficient knowledge, experience, or even sufficient self-confidence to make the best choice without the advice and support of a lawyer. It is possible that he did not object to further questioning in the absence of legal assistance, seeing the confession (true or not) as the only way to end the interrogation. Given the lack of legal assistance the Court considers it also unlikely that the applicant could reasonably have appreciated the consequences of his proceeding to be questioned without the assistance of counsel in a criminal case concerning the investigation of a number of particularly grave criminal offences. The Court therefore does not find that the applicant’s statements, made without having had access to counsel, amounted to a valid waiver of his right.
6.2. Based on item 1 above, a person, such as Amanda Knox, without legal counsel and not knowledgeable about her rights may confess or make some statement (true or not) as the only way to end an interrogation. Use of such confession or statement is a violation of Convention Articles 6.3c and 6.1.
7. BAYTAR v. TURKEY 45440/04 14/10/2014
7.1. The case concerned the questioning in police custody, without the assistance of an interpreter, of an individual who did not have a sufficient command of the national language. The Court found in particular that, without the possibility of having the questions put to her interpreted and of forming as accurate an idea as possible of the alleged offences, Ms Baytar had not been put in a position to appreciate fully the consequences of waiving her right to keep silent and the right to legal assistance.
7.2. Amanda Knox was not provided with a fair interpreter during her interrogation. At the initial part of the questioning, there was no interpreter. After some time, a police interpreter was called in; this person admitted to having acted as a “mediator” who made suggestions to Amanda Knox and thus the police interpreter acted as part of the police team rather than as a fair interpreter. This is a violation of Article 6.3e (right to the assistance of an interpreter) taken together with Article 6.1 (right to a fair hearing) of the European Convention on Human Rights.
8. ETXEBARRIA CABALLERO v. SPAIN 74016/12 07/10/2014
8.1. While in incommunicado custody of the police and questioned, Ms Etxebarria Caballero alleged she was threatened and slapped, and subjected to other mistreatment including episodic asphyxiation and sexual assault. When brought before an investigating judge, she stated that she had been subjected to police mistreatment. Since no physical impairment was noted during a forensic medical examination, Ms Etxebarria Caballero’s complaint was not investigated. Ms Etxebarria Caballero applied to the ECHR claiming violations of Article 3 (prohibition of inhuman and degrading treatment and the requirement that authorities conduct an effective investigation of alleged inhuman and degrading treatment). The ECHR judged that Spain had violated Convention Article 3 by failing to conduct an effective investigation, but that the very lack of evidence that Spain could not provide due to its failure to investigate prevented a finding beyond a reasonable doubt of such treatment.
8.2. Amanda Knox reported in writing turned over to the prosecutor that she had been threatened and slapped during the Nov. 5/6, 2007 interrogation, and she also reported that in court during her trial. In retaliation, she was sued for slander by police, and when her parents stated her complaint in public (echoing a published report), they were also sued for slander. Inferences may be drawn that these law suits are intended to discourage those who suffer mistreatment at the hands of the police from filing complaints. There has been no reported progress in an investigation into Amanda Knox’s complaint. Thus, there are strong grounds for a judgment against Italy for a violation of Convention Article 3 (failure to effectively investigate allegations of inhuman and degrading treatment).
Italian Law
The safeguards of the Italian laws concerning interrogations, admission of evidence, and appointment of lawyers for suspects under interrogations were not followed in this case from the time of the interrogations of November 5/6, 2007 until the arrest confirmation hearing of November 8. Those laws include, but may not be limited to, the following:
CPP Article 63 Incriminating statements
CPP Article 64 General rules for questioning
CPP Article 65 Questioning on the merits of the case
CPP Article 97 Court-appointed lawyer
CPP Article 104 Communication between the lawyer and the accused person under precautionary detention
CPP Article 188 Moral freedom of the person during evidence gathering
CPP Article 191 Unlawfully gathered evidence
CPP means Code of Criminal Procedure
English translation from: The Italian Code of Criminal Procedure: Critical Essays and English Translation
Edited by: Mitja Gialuz, Luca Luparia, and Federica Scarpa
Published by: Wolters Kluwer, Italia CEDAM, (C) 2014 ISBN: 978-88-13-34106-0
CPP Article 63
1. If a person who is not accused or suspected makes statements before the judicial authority or the criminal police that raise suspicion of guilt against him, the proceeding authority shall interrupt the examination, warn him that, following such statements, investigations may be carried out on him, and advise him to appoint a lawyer. Such statements shall not be used against the person who has made them.
2. If the person should have been heard as an accused or a suspect from the beginning, his statements shall not be used.
CPP Article 64
1. If a person who is not accused or suspected makes statements before the judicial authority or the criminal police that raise suspicion of guilt against him, the proceeding authority shall interrupt the examination, warn him that, following such statements, investigations may be carried out on him, and advise him to appoint a lawyer. Such statements shall not be used against the person who has made them.
2. If the person should have been heard as an accused or a suspect from the beginning, his statements shall not be used.
CPP Article 65
1. The judicial authority shall clearly and precisely acquaint the suspected person with the offense he is alleged to have committed, make the elements of evidence existing against him known to him and, unless this obstructs the investigation, inform him of the sources of evidence.
2. The judicial authority shall then invite the suspected person to explain what he deems useful for his defense and ask him direct questions.
3. If the person refuses to answer, this shall be recorded in the minutes. The minutes shall also mention, if applicable, any physical characteristics and possible distinguishing marks of the said person.
CPP Article 97
1. The accused person who has not appointed or no longer has a retained lawyer shall be assisted by a court-appointed lawyer.
2. In order to ensure the effectiveness of the court-appointed defense, the Board of the Bar Association of each Court of Appeal district…shall draw lists of lawyers who may be appointed by the court upon request of the judicial authority or criminal police….
3. If the judge, the Public Prosecutor and the criminal police must carry out an action requiring the assistance of a lawyer and the suspect or the accused does not have a lawyer, they shall inform the lawyer, whose name is notified by the office referred to in paragraph 2, of this particular action.
4. {A substitute lawyer from the list shall be appointed if the one first appointed is not available.}
5. The court-appointed lawyer is required to provide legal assistance….
6. The court-appointed lawyer shall cease his functions if a retained lawyer is appointed.
CPP Article 104
1. The accused who is under precautionary detention has the right to talk to his lawyer as of the start of the enforcement of such measure.
2. A person who is arrested in flagrante delicto or placed under temporary detention under Article 384 {providing for temporary detention, for example, of persons seriously suspected of certain crimes, where maximum penalty is more than 6 year in prison} has the right to talk to his lawyer immediately after he is arrested or temporarily detained.
3. During preliminary investigations, when there are specific and exceptional reasons of caution, the judge may, upon request of the Public Prosecutor, defer, by reasoned decree, the exercise of the right to talk to a lawyer for a period of time not exceeding five days.
4. In case the accused person is arrested or placed under temporary detention, the power established in paragraph 3 shall be exercised by the Public Prosecutor until the arrested or temporarily detained person is brought before the judge.
CPP Article 188
1. Methods or techniques which may influence the freedom of self-determination or alter the capacity to recall and evaluate facts shall not be used, not even with the consent of the person concerned.
CPP Article 191
1. Evidence gathered in violation of the prohibitions set by law shall not be used.
2. The exclusion of evidence may be declared also ex officio at any stage and instance of the proceedings.
Resources:
The Italian Code of Criminal Procedure
Constitution of the Italian Republic
ECHR Reports of Judgments and Decisions
The European Court of Human Rights: Questions and Answers for Lawyers
The Binding Nature of the Judgments of the ECHR and the Universality of Human Rights – A Lecture by Judge Boštjan Zupančič, Judge, the European Court of Human Rights (Strasbourg, April 16th, 2014)
The right to a fair trial: A guide to the implementation of Article 6 of the European Convention on Human Rights by Nuala Mole and Catharina Harby.
Human Rights and Criminal Procedure: The case law of the European Court of Human Rights by Jeremy McBride (2009)
Sentenze della Corte europea dei diritti dell’Uomo (CEDU) – Some significant judgments by the European Court of Human Rights, adopted as a result of individual actions brought against the Italian State for alleged violations of rights guaranteed by the European Convention for the Protection of Human Rights.