In the next legal step for Amanda Knox, the European Court of Human Rights (ECHR), on a date currently unknown, will issue a judgment in the case of Amanda Marie Knox v. Italy.
Amanda Knox and her then boyfriend, Raffaele Sollecito, in a series of trials were convicted, acquitted, convicted, and then finally and definitively acquitted March 27, 2015 of the November 1, 2007 murder/rape of her flat-mate, Meredith Kercher, in Perugia, Italy. However, during the course of those trials, Knox was finally convicted March 25, 2013 of the crime of false accusation (in Italian, “calunnia”) against Diya “Patrick” Lumumba.
It is highly likely that the ECHR judgment will find in favor of Amanda Knox and against Italy, and, if Italy then follows its own laws as well as international law, the end result will be the eventual revision of Knox’s conviction for false accusation, meaning an acquittal or other dismissal of the conviction.
The ECHR is an international court located in Strasbourg, France, created by the Council of Europe (CoE) Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights (Convention), an international treaty binding on the CoE Member States, including Italy. As a condition of joining the CoE, each CoE Member State has solemnly pledged to uphold the final judgments of the ECHR. The final judgments and decisions of the ECHR are called the ECHR case-law. The legal principles pronounced in the ECHR case-law are considered to be as binding on the CoE States as the Convention itself.
The ECHR will judge whether or not Italy violated Knox’s Convention rights, as Knox has alleged, by Italy convicting her of falsely accusing Diya “Patrick” Lumumba during her questioning by Italian authorities investigating the rape and murder of Meredith Kercher.
If the ECHR finds that Italy violated the Convention resulting in an unfair trial for Knox, on Knox’s request, Italy would be obligated under the Convention and ECHR case-law to reopen the trial proceedings and conduct them fairly, in accordance with the Convention.
According to Italian law, a final conviction may be considered for revision to an acquittal or other dismissal under certain conditions. By a 2011 decision of Italy’s Supreme Constitutional Court, these conditions include a final judgment by the ECHR that the the trial proceedings must be reopened. The Constitutional Court issued this decision based on an article of the Italian Constitution which requires that Italian legal practices conform to the provisions of international law.
Each year, the ECHR publishes a Country Profile for each of the CoE States listing significant cases, both those pending and those already resolved. In the current Country Profile for Italy, Knox v. Italy is listed as a Noteworthy Pending Case, indicating that the ECHR has conducted a preliminary review of the case and considers it significant for the protection of the principles of human rights enshrined in the Convention.
Because of the backlog of cases pending before the ECHR – with 56,250 pending applications as of January 1, 2018 – it is uncertain when a judgment in Knox v. Italy will be published. However, since the case was first Communicated to Italy on April 29, 2016, there is some likelihood, but no certainty, that it will be judged sometime in 2018. The Communication to the respondent Member State signals the initialization of a case, after a preliminary review, selected from among the many applications formally received and accepted by (“lodged with”) the ECHR. The application Knox v. Italy was lodged with the ECHR on November 24, 2013, within the ECHR’s six month time-limit after the June 18, 2013 publication of the motivation report detailing the reasons for Knox’s final conviction for false accusation.
The ECHR maintains a web site with home page at www.echr.coe.int with links to extensive information about its structure, methods, country profiles, summaries of case-law on particular topics, and specific cases, including communicated cases.
Did Italy violate Amanda Knox’s rights under the Convention?
Because new ECHR judgments closely follow ECHR case-law precedent, it is possible to assess the likely outcome of a new case when its elements are found in previous case-law, assuming that the ECHR accepts the credibility of the allegations.
Under ECHR case-law, it is a violation of the Convention for the statements made by a person questioned without a lawyer or obtained under coercion to be used to convict that person of a crime. ECHR case-law further requires, except under compelling circumstances, that a suspect placed in detention be immediately provided with a lawyer to prepare a defense. Thus, it would be a violation of the Convention if a conviction results from circumstances related to the unjustified denial of a lawyer during a period of detention.
It is a violation of Italian procedural law to use any statement, considered incriminating by the police or prosecutor, of a person questioned without a lawyer, against that person in court. Italian procedural law also prohibits the use during questioning of any method or technique that influences the free will of a person or alters the person’s capacity to recall or evaluate facts. Italian procedural law states that evidence gathered in violation of a procedural law shall not be used. The ECHR generally accepts a State’s domestic court’s finding of a violation of rights that correspond to Convention rights as clear and convincing evidence of a violation of those Convention rights.
In a 2008 judgment, the Italian Supreme Court of Cassation agreed that Knox’s rights under Italian law had been violated during the questioning and ruled that her statements from the questioning could not be used against her. Apparently this ruling did not in practice apply to the charges relating to false accusation because of a document that Knox wrote on her own initiative soon after the questioning and gave to the police. That document included, among other statements, the claim that she had been threatened and hit by the police during the questioning.
In a 2016 final judgment acquitting Knox of making false accusations in her 2009 trial and subsequent appeals against the police and prosecutor relating to the November, 2007 questioning, the judge wrote in the Motivation Report that Knox’s rights had indeed been violated during the questioning. The judge found that the actions of the police and the police interpreter were irregular and contrary to defense rights under the Italian Constitution.
Thus, it is highly likely that the ECHR will issue a judgment in favor of Knox and against Italy.
The ECHR’s short summary of the case of Knox v. Italy
The summary of the case presented in the Country Profile for Italy, available from a link at the ECHR home page, gives a succinct overview of the violations of the Convention alleged by Knox:
This case concerns criminal proceedings in which Ms Knox was found guilty of making a false accusation. The offending statements were taken while she was being questioned in the context of criminal proceedings for the murder and sexual assault of her flatmate. The applicant was accused of implicating another person whom she knew to be innocent.
Ms Knox alleges that the criminal proceedings in which she was convicted were unfair, relying on Article 6 §§ 1 and 3 (a) (right to a fair trial – right to be informed promptly of the charge), (c) (right to legal assistance), (e) (right to assistance from an interpreter), Article 3 (prohibition of inhuman and degrading treatment) and Article 8 (right to respect for private and family life) of the Convention.
To understand the meaning of the allegations, some general information on the ECHR case-law relevant to Knox v. Italy is given below.
The right to a fair trial (Convention Article 6.1)
The Convention and ECHR case-law recognize that the violation of any one of a number of defense rights during the preliminary steps before a trial or during the trial itself may render a conviction resulting from that trial unjust and unfair. For example, when the police or other responsible authorities fail to provide a defense lawyer during the initial interrogation of a suspect, or fail to warn the suspect of his right to remain silent, and then use during the suspect’s trial statements made by the suspect during that interrogation to obtain a conviction, the ECHR will find a violation of Article 6.1 with 6.3c or of Article 6.1 with 6.3a.
The right to be informed promptly of the charge (Convention Article 6.3a)
According to ECHR case-law, criminal proceedings against an accused suspect begins not with the start of a trial, but with the first questioning of the suspect by the police. According to ECHR case-law, a person may not be mislead by the police that he is being questioned as a witness, who is obligated to answer questions truthfully, when in fact the police are questioning him as a suspect, who may rightfully refuse to answer questions. That is, the suspect has the right to remain silent. The suspect must thus be told that he is under investigation and given clear information, in a language he understands, of the nature of the alleged crime he is suspected of committing. Denial of any of these defense rights may result in an unfair trial.
In its Guide to Article 6 (criminal limb), the ECHR states: the suspect or accused has the right to be informed not only of the “cause” of the accusation, that is to say, the acts he is alleged to have committed and on which the accusation is based, but also of the “nature” of the accusation, that is, the legal characterization given to those acts.
The right to legal assistance (Convention Article 6.3c)
Except for certain unusual situations, ECHR case-law requires that a defense lawyer representing the suspect must be present during the first and subsequent questioning of a suspect. There are only two exceptions that have been allowed in ECHR case-law.
These exceptions are: if the suspect, knowing the potential legal consequences, explicitly waives the right to a lawyer, and such refusal is not contrary to human rights; and if the suspect is an alleged terrorist, a “safety interview” without a lawyer may be conducted to find information on bombs or similar weapons of mass destruction. For a suspect’s waiver of a lawyer to be valid, the State is obligated to show, at a minimum, evidence such as a document, signed by the suspect, that explains the suspect’s right to a lawyer and indicates that the suspect has knowingly waived that right.
Another aspect of ECHR case-law is that the suspect or accused person is entitled to legal representation including confidential discussion with a defense lawyer not only from the first questioning, but also from the time of arrest or detention. The arrested and detained person must be provided with a lawyer to discuss the case and formulate defense strategy, for example, with adequate time before the arrest review hearing. Thus, unless there were reasons that the ECHR considered compelling, a detained person may not be kept without the practical right to communicate to a lawyer but rather must be provided with a lawyer from the first moment of detention.
The ECHR in its Guide states: Any person subject to a criminal charge must be protected by Article 6.3c at every stage of the proceedings. This protection may thus become relevant even before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with the provisions of Article 6. Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer from the initial stages of police questioning. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such a restriction must not unduly prejudice the rights of the accused under Article 6. The right of everyone charged with a criminal offense to be effectively defended by a lawyer is one of the fundamental features of a fair trial. 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.
The right to assistance from an interpreter (Convention Article 6.3e)
Although there has been a limited history of ECHR cases relating to the right to have an interpreter, it is clear from them that the assistance of a neutral, fair interpreter is required from the first interrogation of a suspect if a trial which ends in a conviction is to be considered fair. As stated by the ECHR in its Guide on Article 6, the services of the interpreter must provide the accused with effective assistance in conducting his defense and the interpreter’s conduct must not be of such a nature as to impinge on the fairness of the proceedings.
Prohibition of inhuman and degrading treatment (Convention Article 3)
The ECHR strictly prohibits the use of evidence obtained by violation of Article 3. As stated in the Guide: The use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction. Therefore, the use in criminal proceedings of statements obtained as a result of a violation of Article 3 – irrespective of the classification of the treatment as torture, inhuman or degrading treatment – renders the proceedings as a whole automatically unfair, in violation of Article 6.
Under ECHR case-law, Article 3 requires a State to not commit or allow mistreatment, and also requires a State to appropriately, with thoroughness and independence, investigate any credible allegation of mistreatment. Thus, ECHR recognizes two branches to Article 3: the substantive branch, when there is clear evidence that the alleged mistreatment occurred, and the procedural branch, when there is clear evidence that the authorities did not appropriately investigate a credible allegation of mistreatment. A finding of a violation of Article 3 may be only for the substantive branch, only for the procedural branch, or for both branches.
Respect for Article 3 is tied to the right of the suspect to remain silent and not to incriminate himself, and is one reason the ECHR insists upon the suspect having a defense lawyer from the first questioning and immediately upon arrest and detention.
As stated in the ECHR Guide: The right not to incriminate oneself presupposes that the prosecution in a criminal case seek to prove their case against the accused without recourse to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. Anyone accused of a criminal offense has the right to remain silent and not to contribute to incriminating himself. Although not specifically mentioned in Article 6, the right to remain silent and the privilege against self-incrimination are generally recognized international standards which lie at the heart of the notion of a fair procedure under Article 6. By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6. The right not to incriminate oneself applies to criminal proceedings in respect of all types of criminal offenses, from the most simple to the most complex. The right to remain silent applies from the point at which the suspect is questioned by the police. Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination. In order for the right to a fair trial under Article 6.1 to remain sufficiently “practical and effective”, access to a lawyer should, as a rule, be provided from the first time a suspect is questioned 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.
Right to respect for private and family life (Convention Article 8)
The ECHR Guide states: the question whether the use as evidence of information obtained in violation of Article 8 rendered a trial as a whole unfair contrary to Article 6 has to be determined with regard to all the circumstances of the case, and in particular to the question of respect for the applicant’s defense rights and the quality and importance of the evidence in question. For the Knox case, the allegations include that there was a violation of Article 8 with other violations, including of Article 3, as part of a police effort to obtain statements from the suspect against her will.
Was Amanda Knox a suspect during the November 5/6, 2007 questioning?
The Italian police and prosecutor did not disclose to Knox during the November 5/6, 2007 questioning that she had become a suspect prior to the beginning of the questioning, nor did they disclose to her that she had become a suspect because of her statement or any other cause during the questioning.
No documentation or other credible evidence exists that proves that the police or prosecutor informed her of the defense rights and warnings that as a suspect she was entitled to under Italian law: that she had become the subject of an investigation, that she had a right to remain silent, that anything she said might be used against her, that anything she said about the culpability of another placed upon her the responsibilities of a witness, or that she was entitled to a lawyer, including during all questioning, and would be provided one if she had not already retained one. These rights and warnings are required in Italian law, under Articles 63 and 64 of the Italian Code of Criminal Procedure.
In cases where there is a controversy over whether a person’s statements made during questioning without the presence and assistance of a defense lawyer were used fairly in a trial that resulted in the conviction of that person, the ECHR relies on the factual or practical status of the person questioned rather than the “official” or pro forma definition of the status by the authorities. Thus, in ECHR case-law, a person questioned “officially” as a witness, that is, presumably required to answer questions and not having a defense lawyer present, who makes a statement that the authorities consider incriminating, is a “suspect”. Indeed, this principle is part of Italian law: Article 63 of the Italian Code of Criminal Procedure.
Furthermore, the ECHR, according to its case-law, always concludes that the lack of any documentation or other credible evidence that a questioned person who made a statement deemed incriminating by the police was informed of his defense rights, such as the right to remain silent and the right to a lawyer, and the warnings that must be given to a suspect, proves that no such required information was given by the authorities.
The Italian Supreme Court of Cassation, with Judge Gemelli presiding, ruled in 2008 that Knox was indeed a suspect during the questioning. The Supreme Court of Cassation went on to rule that the police and prosecutor had violated Italian law, Article 63 of the Italian Code of Criminal Procedure, in not giving Knox her rights of defense, including the right to remain silent. As a result of this violation, her two statements, written out for her in Italian by the police, made during the November 5/6 questioning, could not be used against her in court, but the first statement only could be used against someone else. The Supreme Court of Cassation went on to rule that the statement in English (Memoriale 1) that Knox wrote after the questioning, of her own free will – in which she stated that she had been threatened and hit during the questioning, and was unsure if what she had said about Lumumba was true – could be used in court against her or anyone else.
Judge Boninsegna’s court in Florence, which heard the trial of Amanda Knox on charges that she had committed continuous aggravated false accusation (calunnia) against the police and prosecutor Mignini also stated that Knox had been a suspect during the November 5/6 questioning. Knox was charged with continuous aggravated false accusation against the police and prosecutor Mignin because she had stated on several occasions during her first trial, before Judge Massei’s court in Perugia, for the murder/rape of Meredith Kercher and for false accusation against Diya “Patrick” Lumumba, and in each of her appeals to higher courts on being convicted of false accusation against Lumumba, that she had been threatened and hit by the police during the November 5/6 questioning. To show that Knox was a suspect during the November 5/6 questioning, Judge Boninsegna pointed out the 2008 ruling of the Supreme Court of Cassation, and also discussed the police taking (seizure) of Knox’s cell phone prior to her making any statement against Lumumba. A seizure without a warrant, under Italian procedural law, is only legal if done to preserve evidence at the scene of a crime or if the evidence is held by a suspect who might destroy the evidence before a warrant could be obtained. Thus, Knox was a suspect in the view of the police, based upon that action, before she made her statement implicating Lumumba.
Another indication that Knox and Sollecito were suspects prior to the questioning of November 5/6 is the testimony of Vice Questore Aggiunto (Deputy Chief of Police) Edgardo Giobbi. VQA Giobbi, in November, 2007, was one of the highest-ranking police officers in Italy. He was in charge of the team of police from the Servizio Centrale Operativo (SCO), headquartered in Rome, who were sent to Perugia to help the local police during the investigation. In the first trial, before Judge Massei’s court in Perugia, Giobbi testified that Knox and Sollecito were suspects before the November 5/6 questioning, and that he had ordered their questioning on that day. He also stated that he and other supervising officers monitored the questioning from another room in the police station. He testified that he could hear Knox loudly crying and yelling during the questioning. If the ECHR takes note of this testimony, it would tend to reinforce a judgment that Knox was not only a suspect under questioning but also one seemingly being subjected to some form of physically or emotionally painful coercion.
Lastly, Sollecito, whose questioning began before Knox’s on November 5/6, in his book Honor Bound, reports that the police began the questioning by aggressively demanding that he drop his support for Knox and tell them that she was not with him at his apartment at the time of the murder/rape of Kercher. He also writes in his book that he later heard Knox crying and yelling for help. This is consistent with the testimony of Giobbi.
What can be deduced about the potential ECHR judgment from the Communication to Italy?
While the tone of the ECHR’s Communication to Italy is neutral, it includes in the background facts of the case a summary and some excerpts from Judge Boninsegna’s motivation report, the detailed report of the reasoning for a verdict that is required by Italian law. That summary includes this statement: Judge Boninsegna’s court considered that Knox “had been subjected to intense psychological pressure from the investigators, leading her to formulate the name of Mr. D.L. [Lumumba] for the sole purpose of terminating a treatment contrary to the rights of the person under investigation [Knox]”. Since the role of the ECHR is to call out violations of the rights as enshrined in the European Convention of Human Rights and its case-law, and the rights referred to by the Boninsegna court are indeed among those in the Convention, there can be little doubt about the ECHR’s ultimate judgment.
Background: A brief summary of the November 5/6, 2007 questioning
On November 6, 2007, Amanda Knox, an American student studying Italian language at a university in Perugia, Italy, was arrested, charged with the murder and rape of her flat-mate, Meredith Kercher. Knox had been questioned, initially seemingly as a witness and finally as an “unofficial” suspect, over the span of many hours from November 2 – 6. The police recorded 53 hours of their contact with Knox in the Perugia police station prior to her arrest. The questioning of Knox as an “unofficial” suspect was found to be in violation of Italian procedural law by Italy’s Supreme Court of Cassation in a 2008 decision.
Sollecito was ordered to report to the police station for questioning which began on the night of November 5, perhaps at about 10:30 pm. Knox had accompanied him to the police station, where she began to do homework. The police initiated her final pre-arrest questioning starting at about 11:00 pm on November 5. The questioning of both lasted until the morning of November 6. Knox’s statements, written out by computer printer in Italian by the police, were indicated as generated at 1:45 am and 5:45 am.
Knox – who had only a beginner’s knowledge of Italian at the time – was confronted by a team of police interrogators from Perugia and Rome who, she claims, told her she knew who murdered Kercher and began a continuous stream of insults and threats in Italian to coerce her to provide the name of Kercher’s murderer. According to Knox, one of the female police officers twice slapped her on the back of the head to “help her remember” during the questioning; the police allegedly suggested that she had temporary amnesia because of the shock of Kercher’s murder. A police interpreter was brought into the interrogation because of Knox’s limited skill in Italian. However, the police interpreter viewed her role, according to her testimony in the subsequent trials, as that of a “mediator”. In that role, the interpreter told Knox of an occasion when, due to a severe injury, the interpreter had suffered temporary amnesia.
During the questioning, the police took possession of Knox’s cell phone. Under Italian procedural law, this may be considered the seizure, without initial warrant, of evidence from a suspect. The police found a November 1 text message from Knox to Lumumba, her boss at a pub where she worked part-time. The message was in Italian “Certo. Ci vediamo più tardi. Buona serata”; translation: “Sure. See you later. Have a good evening”. The message, as Knox has claimed that she repeatedly explained to the police, was her response to a message from Lumumba telling her she should not come to work at the pub that evening, which was experiencing little business because of the Italian holiday, All Souls Day, on November 1. This message was interpreted by the police and prosecutor as indicating that Knox was committing to meet with Lumumba later in the evening of November 1 to assist him in an attack on Kercher. The interpreter, however, in her testimony before Judge Boninsegna’s court, admitted that she understood during the questioning that “the phrase on record, see you later, should be understood as an invitation to a totally generic future meeting equivalent to a presto [Italian for “see you soon”] or something similar, rather than to an imminent and certain invitation” but did not call this to the attention of her police colleagues. Of further interest, in the arrest warrant prepared by the prosecutor, the phrase was given as though it were a direct quote, but it was significantly changed from the actual Italian text to be: “ci vediamo dopo”. This shortened phrase, while also translating as “see you later”, leaves out “buona serata” [have a good evening], thus changing a “goodbye” to what would be closer to the police and prosecution claim of an invitation to a meeting. This alteration of alleged evidence reported on the arrest warrant may be of significance to the ECHR as indicating “bad faith” on the part of the authorities. The ECHR considers “bad faith” in the course of an arrest as a possible indication that the arrest itself was a violation of the Convention.