Written by Injustice Anywhere poster, Numbers.
The Meredith Kercher Murder Case
Amanda Knox and Raffaele Sollecito are both defendants in the case of the murder and sexual assault of Meredith Kercher. The actual sole murderer and rapist, Rudy Guede, was convicted in an Italian fast-track trial.
Amanda Knox and Raffaele Sollecito were provisionally convicted in a first-level trial (Giancarlo Massei, presiding judge) and then provisionally acquitted in a second-level trial (Claudio Hellmann, presiding judge). However, verdicts in Italy are only final when approved by the Italian Supreme Court of Cassation (Corte Suprema di Cassazione, CSC). The CSC quashed the acquittal of the Hellmann court and ordered a new second-level trial, giving specific suggestions that a guilty verdict was indicated. The new second-level trial (Alessandro Nencini, presiding judge) resulted in a provisional conviction. The Nencini court verdict has been appealed by both defendants and will be reviewed by the CSC in a hearing scheduled to begin March 25, 2015.
If the result of that hearing is an acquittal, then an application to the European Court of Human Rights (ECHR) would not be appropriate. If the result is the quashing of the Nencini verdict and the ordering of a third second-level trial, an application to the ECHR except for length of trial may be problematic, since applications are inadmissible unless domestic remedies are exhausted. However, if there is a final conviction, an application to the ECHR by either Amanda or Raffaele or both would be in admissible if filed within the requisite time limit.
This analysis of the European Court of Human Rights judgments relevant to the Knox-Sollecito case will focus on: 1) the facts of instances of alleged violations by Italy of specific Articles of the European Convention of Human Rights (the Convention), 2) a description of the Convention Law, and 3) on a list of supporting cases (exemplar judgments). The brief descriptions of the Convention Law in each subsection is based upon information in the Guide on Article 6 :Right to a Fair Trial (Criminal Limb), (c) Council of Europe/Court of Human Rights, 2014; available at http://www.echr.coe.int, and on the cases listed (available on the ECHR HUDOC database).
The text of Article 6 of the European Convention of Human Rights:
Article 6 – Right to a fair hearing
1. In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
The analysis for the Knox-Sollecito case, Part 2; all violations listed are allegations based on the opinion of the author:
1. Violation of Article 6.2 – Right to Presumption of Innocence; First Instance
1.1 The Facts: The Chief of Police of Perugia declared “Case Closed” on Nov. 6, 2007 in a press conference held after the arrest of Amanda Knox, Raffaele Sollecito, and Patrick Lumumba, and clearly indicated that these individuals were definitely guilty of the murder of Meredith Kercher. Giuliano Amato, the Italian interior minister, said:
It was a horrible death, an awful occurrence in which people that were in this young woman’s home tried to bring her into relations that she didn’t want to have, and she was killed.
1.2 The Law: The presumption of innocence may be infringed not only by a judge or court but also by other public authorities. Article 6 § 2 prohibits statements by public officials about pending criminal investigations which encourage the public to believe the suspect guilty and prejudge the assessment of the facts by the competent judicial authority. The Court has emphasised the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of an offence.
1.3 Cases: Allenet Ribemont v. France 15175/89 § 36; Daktaras v. Lithuania 42095/98 § 42; Ismoilov and others v. Russia 2947/06 § 161; Butkevicius v. Lithuania 48297/99 § 53
2. Violation of Article 6.2 – Right to Presumption of Innocence; Second Instance
2.1 The Facts: The authorities released, or allowed the release, to the media of false defamatory and incriminating information fabricated by the authorities and private information taken without permission from the personal writings and conversations of Knox and Sollecito, respectively.
2.2 The Law: A virulent press campaign can…adversely affect the fairness of a trial by influencing public opinion and, consequently, jurors [or lay judges] called upon to decide the guilt of an accused.
2.3 Cases: Kuzmin v. Russia 58939/00 § 62; Khuzhin v. Russia 13470/02 § 93-96; Dovzhenko v. Ukraine 36650/03 § 47-52; Shuvalov v. Estonia 39820/08 § 82
3. Violation of Article 6.2 – Right to Presumption of Innocence; Third Instance
3.1 The Facts: Amanda Knox and Raffaele Sollecito were explicitly designated as guilty of Meredith Kercher’s murder in Rudy Guede’s Fast-Track trial motivation report (Micheli report). The Micheli report states as facts, rather than as allegations to be proven, the following:
3.1.1 That a trace of Kercher’s biological material [DNA] was found on a kitchen knife taken from Sollecito’s apartment, with Knox’s DNA on the handle (p. 45);
3.1.2 That a mixture of Kercher’s and Sollecito’s DNA was found on the on the hooks of the bra clasp recovered in the murder room of the cottage on 18 December 2007 (p. 45);
3.1.3 That the statements alleging evidence regarding Knox and Sollecito and of the prosecution theory of the crime from the preliminary hearing of Knox and Sollecito were incorporated into the Fast-Track motivation without indication that those statements were unproven, (p. 54 and following)
4. Violation of Article 6.2 – Right to Presumption of Innocence; Fourth Instance
4.1 The Facts: In Rudi Guede’s appeal trial judgment, the Borsini-Bellardi motivation, Amanda Knox and Raffaele Sollecito are stated to be guilty of the murder of Meredith Kercher. Amanda Knox is stated to have allowed Guede into the flat and to have committed a cover-up of the presence of Sollecito and herself in the crime, including by the staging of a break-in.
4.2 The Law: The presumption of innocence will be violated if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty. A premature expression of such an opinion by the tribunal itself will inevitably fall foul of this presumption.
4.3 Cases: Minelli v. Switzerland 8660/79 § 37; Nerattini v. Greece 43529/07 § 23; Didu v. Romania 34814/04 § 41
5. Violation of Article 6.2 – Right to Presumption of Innocence; Fifth Instance
5.1 The Facts: DNA evidence allegedly implicating the defendants could more likely be explained as contamination. The reliability of the DNA test procedures used was not established by the prosecution, including the validity of tests and their freedom from contamination. The responsibility for establishing the presence and source of contamination, was however, by fiat of the Corte Suprema di Cassazione, assigned to the defendants.
5.2 The Law: The presumption of innocence will be infringed where the burden of proof is shifted from the prosecution to the defence. In requiring the defendant to provide an explanation although they had not been able to establish a convincing prima facie case against [the defendant], the [domestic] courts shifted the burden of proof from the prosecution to the defence. *
5.3 Telfner v. Austria 33501/96 § 15
6. Violation of Article 6.3b – Right to Adequate Facilities for Defense; First Instance
6.1 The Facts: Following their arrest, Amanda Knox and Raffaele Sollecito were each held incommunicado and were each not provided with a lawyer until November 8, 2007 at the Hearing for the Validation of the Arrest before Judge Matteini. Therefore, their lawyers did not have adequate time to determine the facts of the case or provide adequate counsel.
6.2 The Law: Article 6 § 3(b) of the Convention concerns two elements of a proper defence, namely the question of facilities and that of time. This provision implies that the substantive defence activity on the accused’s behalf may comprise everything which is “necessary” to prepare the trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the ability to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings. When assessing whether the accused had adequate time for the preparation of his defence, particular regard has to be had to the nature of the proceedings, as well as the complexity of the case and the stage of the proceedings.
6.3 Cases: Gregačević v. Croatia 58331/09 § 51
7. Violation of Article 6.3b – Right to Adequate Facilities for Defense; Second Instance; with Violation of Article 6.1 – Right to Equality of Arms
7.1 The Facts: In each of the trial phases, despite requests from the defense, a large number of items of evidence, including forensic evidence, in the possession of the police were never admitted into the court and not disclosed to the defense. These items include, but are not limited to:
7.1.1 Electronic data files from the DNA profiling (requested by Hellmann court, but not delivered to court or defense)
7.1.2 Full results of DNA negative and positve control samples
7.1.3 Full results of the rape kit DNA profiling, including any presence of sperm or any indication of anal rape
7.1.4 Full explanation of the methodology used to conduct the DNA sampling, quantification, and profiling
7.1.5 Full disclosure of all samples of DNA tested; there was a suppression of data revealed by anomalies in the number of samples
7.1.6 Full disclosure of the DNA results of the human blood stains in the downstairs flat
7.1.7 Testing of a putative semen stain to identify it and to conduct DNA profiling
7.2 The Law: The “facilities” which everyone charged with a criminal offence should enjoy include the opportunity to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings. Failure to disclose to the defence material evidence containing items that could enable the accused to exonerate himself or have his sentence reduced may constitute a refusal of the facilities necessary for the preparation of the defence, and therefore a violation of the right guaranteed in Article 6 § 3(b) of the Convention. The accused may, however, be expected to give specific reasons for his request and the domestic courts are entitled to examine the validity of these reasons.
7.2.1 It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition, Article 6 § 1 requires that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused.
7.2.2 Having regard to the fact that, in spite of repeated requests, essential pieces of evidence were not adequately adduced and discussed at the trial in the defendant’s presence, the proceedings … taken as a whole, did not satisfy the requirements of a fair trial. *
7.2.3 It [was not reasonably] explained why the defendants’ requests to have the [evidence] produced before the court were refused. While it is true that the right to disclosure of relevant evidence is not absolute, the Court must scrutinise the decision-making procedure to ensure that, as far as possible, the procedure complied with the requirements to provide adversarial proceedings, equality of arms and incorporated adequate safeguards to protect the interest of the accused.*
7.2.4 The defendant was neither informed of the reasons for non-disclosure nor of the nature of the undisclosed materials nor, indeed, of whether the [suppressed evidence] did include any undisclosed material evidence. The Court considers that the procedure followed by the judicial authorities in the present case failed to adequately counterbalance the difficulties caused to the defence by its restricted access to the [suppressed evidence]. The defence were not informed in an adequate manner of the [domestic court’s] position on why it had been strictly necessary to restrict their rights and they had no possibility of presenting their counterarguments to any such considerations. The Court observes that the [domestic court] initially did authorise the applicant’s access to the [suppressed evidence] – implying that it found no reasons to restrict such access and considered it to be of some importance for the defence – but failed to take adequate measures to ensure compliance by the investigating authorities with its orders. Nor was this issue of non-compliance subsequently addressed in the judgements of the domestic courts. In these circumstances, the Court does not consider that the procedure employed to determine the issue of disclosure of evidence complied with the requirements to provide adversarial proceedings and equality of arms or incorporated adequate safeguards to protect the interests of the accused. It follows that there has been a violation of Article 6 of the Convention in this respect.*
7.2.5 Non-disclosure of evidence to the defence may breach equality of arms (as well as the right to an adversarial hearing).
7.3 Cases: Natunen v. Finland 21022/04 § 43; Georgios Papageorgiou v. Greece 59506/00 (as 6.3d) § 36-39; Laska & Lika v. Albania 12315/04 § 70; Leas v. Estonia 59577/08 § 76-89; Kuopila v. Finland 27752/95 § 38
8. Violation of Article 6.3c – Right to Defend Oneself Through Legal Assistance
8.1 The Facts: Amanda Knox and Raffaele Sollicito were separately coercively interrogated by police without the presence of legal counsel during the night of November 5/6, 2007.
8.1.1 Raffaele, as a result of pressure from the police and a confusion over dates, made a statement interpreted by police as indicating that Amanda had left his apartment the night of November 1.
8.1.2 Amanda, as a result of exhaustion, pressure from the police, police misrepresentation of a message on her cell phone, and misleading information that Raffaele was no longer vouching for her presence at his apartment at the relevant time, and the suggestion by a police interpreter self-described as a mediator that Amanda could be suffering from traumatic amnesia, made false statements that she had let Patrick Lumumba into the cottage and heard him killing Meredith Kercher.
8.1.3 Her false statement was interpreted by the Nencini court as indicating she had participated in the murder, although the Corte Suprema di Cassazione had initially stated that her statements made during interrogation without a lawyer could not be used as evidence against her in the murder trial.
8.2 The Law: Any person subject to a criminal charge must be protected by Article 6 § 3(c) 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.
8.2.1 The manner in which Article 6 § 3(c) is to be applied in the pre-trial phase, i.e. during the preliminary investigation, depends on the special features of the proceedings involved and on the circumstances of the case. 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.
8.2.2 This right may, however, be subject to restriction for good cause. The question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing. 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.
8.3 Cases: Salduz v. Turkey 36399/02[GC] § 50-55; Ibrahim and others v. the United Kingdom 50541/08 § 191-196; Seventy-five other cases reference Salduz
9. Violation of Article 6.3d – Right to Examine Witnesses
9.1 The Facts: Statements by Rudy Guede, the actual murderer of Meredith Kercher, were used directly or indirectly against Amanda Knox and Raffaele Sollecito, in particular in the Motivation Reports of the CSC quashing the Hellmann court acquittal and of the Nencini court provisionally convicting them, with there having been no cross-examination at any time of Guede by the defense of either defendant.
9.2 The Law: Article 6 § 3(d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings.
9.2.1 In particular, the use of statements from a co-defendant legally exercising the right not to testify and be cross-examined may not be used to convict any of the other defendants.
9.2.2 Thus, when a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6.
9.3 Cases: Hümmer v. Germany 26171/07 § 38; Lucà v. Italy 33354/96 § 39-40; Solakov v. the Former Yugoslav Republic of Macedonia 47023/99 § 57; Al-Khawaja & Tahery v. the United Kingdom 26766/05 & 22228/06[GC] § 119
10. Violation of Article 6.3e – Right to the Assistance of a Fair Interpreter
10.1 The Facts: Amanda Knox was not provided with a fair interpreter during her interrogation on Nov. 5/6, 2007. 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 told Amanda Knox about the interpreter’s personal experience with traumatic amnesia and suggested that Amanda could be experiencing a similar episode. Thus the police interpreter acted as part of the police team rather than as a fair interpreter.
10.2 The Law: A fair interpreter must be provided from the first interrogation to someone who is not sufficiently fluent in the language used in the interrogation, because of the need to a form an idea as accurately as possible of the alleged offences, and to asure that the subject of the interrogation is in a position to appreciate fully the consequences of any waiver of the right to keep silent and the right to legal assistance. The denial of a fair interpreter from the very first interrogation is a violation of Convention Article 6.3e with Article 6.1.*
10.2.1 Article 6 § 3(e) applies not only to oral statements made at the trial hearing but also to documentary material and the pre-trial proceedings. However, only documents essential to the defendant understanding the case need be translated. *
10.2.2 The services of the interpreter must provide the accused with effective assistance in conducting his defence and the interpreter’s conduct must not be of such a nature as to impinge on the fairness of the proceedings. In sum, the interpretation assistance provided should be such as to enable the defendant to have knowledge of the case against him and to defend himself, notably by being able to put before the court his or her version of the events.
10.3 Cases: Baytar v. Turkey 45440/04 § 53-59; Kamasinski v. Austria 9783/82 § 74; Hermi v. Italy [GC] 18114/02 § 70-72
11. Violation of Article 6.1 – Right to a Reasoned Decision
11.1 The Facts: There were numerous deviations from acceptable legal reasoning in the motivation reports in the case. Indeed, there was no reliable evidence of guilt presented. In particular, DNA evidence allegedly implicating the defendants could most likely be explained as due to contamination; the possibility of contamination was not adequately discussed in the Nencini court motivation report. In fact, extraordinary claims contrary to accepted scientific principles were used to evade the acknowledgment of DNA contamination of the bra clasps.
11.1.1 The “staging” of a break-in of the cottage through a window was accepted as fact based on an absurd rationale, without adequate or reasonable consideration of the defense argument that the break-in was real.
11.1.2 There are numerous examples of conclusions adopted solely on the basis of the statement of the prosecution or the invention of the judge(s) that are found in the motivation report; for example, the alleged murder weapon, a kitchen knife from Raffaele Sollecito’s apartment, is alleged to have been carried to the cottage shared by the victim and Amanda Knox, with no evidence whatsoever that such occurred.
11.1.3 Furthermore, the conclusions and reasonings of the Nencini report are totally inconsistent, with the possible exception of the calunnia charge against Amanda Knox, with the Hellmann court motivation report, which acquitted the defendants of all other charges. Indeed, there were differing evaluations of the same physical evidence.
11.1.4 The Nencini court motivation report did not adequately explain why it rejected defense requests to admit evidence.
11.2 The Law: According to established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. While courts are not obliged to give a detailed answer to every argument raised, it must be clear from the decision that the essential issues of the case have been addressed National courts should indicate with sufficient clarity the grounds on which they base their decision so as to allow a litigant usefully to exercise any available right of appeal.
11.2.1 No convincing evidence brought forth at trial is a violation of Article 6.1.*
11.2.2 Manifestly deficient reasoning of the domestic court failed to fulfill the requirements of a fair trial; violation of Article 6.1.*
11.2.3 The Court, however, is not persuaded that the domestic courts made reliable factual findings because their conclusions appear inconsistent, fraught with contradiction and irreconcilable with the actual events, and in particular with the judgment of [another court hearing the case]. Whilst acknowledging the domestic judicial authorities’ prerogative to assess the evidence and decide what is relevant and admissible, the Court reiterates that Article 6 § 1 places the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties. The Court is perplexed by this [unreasonable] conclusion and cannot see how it could be reconciled with the abundant evidence to the contrary, [including a previous contrary decision of a domestic court]. The unreasonableness of this conclusion is so striking and palpable on the face of it that the decisions of the domestic courts [in the final decision] can be regarded as grossly arbitrary, and by reaching that conclusion in the circumstances of the case the domestic courts in fact set an extreme and unattainable standard of [defense, that the defendants] in any event, [could not] have had even the slightest prospect of success. The Court concludes that the [defendants did not have a] fair hearing.*
11.2.4 The Court noted that in the present case the validity and reliability of the same item of evidence had been assessed differently by the domestic courts. This contradictory assessment had led to different legal conclusions as to the establishment of the facts, [and the crime]. Since this was the decisive piece of evidence for establishing the facts, an issue arose in terms of the fairness of the proceedings. [The domestic court] had not provided sufficient reasons for choosing to adopt a contrary position concerning the validity of the same item of evidence. Bearing in mind the decisive role of the evidence in question, a specific and express reply to that argument had been required from the courts. In the absence of such a reply, it was impossible to ascertain whether the courts had simply neglected to deal with the argument or if they had intended to dismiss it and, if so, for what reasons.*
11.2.5 The Court does note the importance for the [domestic court] to give detailed and convincing reasons for the refusal to take evidence proposed by a [defendant], especially when that evidence has considerable importance for the outcome of the proceedings.*
11.3 Cases: Boldea v. Romania 19997/02 § 30; Berhani v. Albania 847/05 § 55; Tatisvilli v. Russia 1509/02 § 63; Khamidov v. Russia 72118/01 § 137 & 173-175; S.C. IMH Suceava v. Romania 24935/04 § 33 & 39-41; Mala v. Ukraine 4436/07 § 53
12. Violation of Article 6.1 – Right to a Fair Hearing by an Impartial Tribunal with the Right to a Reasoned Decision
12.1 The Facts: Following the acquittal of both defendants on all charges except simple calunnia (for Amanda Knox only) by the Hellmann court, the CSC annulled the acquittal on unreasonable grounds, and in practical effect directed a lower court to find the defendants guilty on all charges, leaving primarily only the motivation of the crime to be determined by the lower court. Clear and sufficient reasons were not given for quashing the acquittal verdict. The CSC contributed its own finding of fact for some aspects, although it only reviewed documents and had not heard the case or examined evidence.
12.1.1 The Nencini court in its verdict and motivation report largely conformed to the CSC motivation report directions. That is, the Nencini court provisionally convicted the defendants on all charges, including as directed by the CSC, convicting Knox of aggravated calunnia. However, neither the CSC in its quashing of the Hellmann court acquittal, nor the Nencini court in convicting, reheard the witnesses or reviewed new inculpatory evidence.
12.1.2 The only new forensic DNA evidence reviewed, which the CSC had termed decisive, but which previously been considered unsuitable for testing, when evaluated by new technical means, was not at all inculpatory. Furthermore, the opinion of experts on DNA forensics, who had been appointed by the Hellmann court, was arbitrarily and unreasonably disregarded without adequate rationale. The court-appointed DNA experts had found the alleged DNA evidence against Knox and Sollecito to be unreliable since the samples were not obtained in accordance with international standards for the prevention of contamination and the testing had not been conducted in accordance with validated methods. The experts stated that the police forensic laboratory in which the testing had been done was not equipped to carry out to prepare or test the low-count number (LCN) DNA samples allegedly implicating Knox and Sollecito.
12.2 The Law: It therefore appears that when they convicted the [defendant] neither the Court of Appeal nor the Supreme Court relied on any new evidence. Instead, they based their decisions on the evidence given by the [defendant] and the witnesses before the prosecutor and the [first-level] Court. However, the latter, after having heard the witnesses in person, had held that none of the evidence was conclusive proof as to the [defendant’s] guilt, and acquitted him. Even if the appellate courts could, in principle, have given their own interpretation of the evidence adduced before them, in the instant case the [defendant] was found guilty on the basis of witness testimony that had been found insufficient by the [first-level] Court and had justified his acquittal.*
12.2.1 The Court reiterates that the manner of application of Article 6 to proceedings before courts of appeal depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein. However, where an appellate court is called upon to examine a case as to the facts and the law and to make a full assessment of the question of the [defendant’s] guilt or innocence, it cannot, as a matter of fair trial, properly determine those issues without a direct assessment of the evidence given in person by an accused who claims that he has not committed the act alleged to constitute a criminal offence.
12.2.2 The domestic courts have a duty to provide reasons for their decisions; the extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Failure to give sufficient reasons [or arbitrary reasoning] raise issues of violations of Article 6. The domestic courts chose simply to remain silent with regard to certain fundamental issues, such as the fact that [the defendant] had an alibi for the presumed time of the murder. The Court could not find any [reasonable] explanation for such omissions in the domestic courts’ decisions; this is striking, given that two courts acquitted the applicant in the first round of proceedings and since, in the absence of any new evidence mentioned in the courts’ judgments, they convicted the [defendant] in the second round of proceedings, disregarding circumstances which had earlier led to his acquittal. Therefore, the domestic courts did not give sufficient reasons for their judgments, and a violation of Convention Article 6.1.*
12.2.3 The Court does note the importance for the [domestic court] to give detailed and convincing reasons for the refusal to take evidence proposed by a [defendant], especially when that evidence has considerable importance for the outcome of the proceedings.*
12.2.4 The question of whether or not the defence enjoyed “equality of arms” with the prosecution and whether the trial was “adversarial” cannot be addressed solely in quantitative terms. In the present case it was very difficult for the defence to effectively challenge the expert evidence submitted to the court by the prosecution. The Court stresses that the case against the applicant was built upon that expert evidence. In those circumstances, the way in which expert evidence was handled made the applicant’s trial unfair.*
12.3 Cases: Hanu v. Romania 10890/04 § 39-40; Cipleu v. Romania 36470/08 § 30-31; Ventrenko v. Moldova 36552/02 § 52-53 & 58; Mala v. Ukraine 4436/07 § 53; Matytsina v. Russia 58428/10 § 207
* Paraphrased from the ECHR case judgment text.
Note: There are additional violations of the Convention that appear in this case, specifically, Article 3 (Prohibition against Torture and Inhuman and Degrading Treatment) and Article 8 (Right to Privacy). The Article 3 issues will be discussed separately. The Article 8 issues are important but do not necessarily affect the fairness of the trials, and may be summarized separately.