I'm all for Italy pursuing criminal investigations, whether against US soldiers or intelligence officials. But I don't see how in absentia trials can possibly be fair. And justifying them on grounds of exceptional circumstances because "the State's interests have been gravely jeopardized or damaged" smacks a bit too much of a certain other government that we all know and hate.
Otherwise, a fugitive from justice will not be tried until he/she has been apprehended.
Generally, in absentia trials are due to the defendant exercising his right to refuse to be present at his trial. In fact it is considered a violation of human rights to force a person to assist to his trial. In that case the defendant chooses to be represented or accepts to be represented by his/her defense lawyer.
Trials in contumacia are admitted by the European Convention of Human Rights as long as certain safeguards are guaranteed with reasonable equilibrium in harmony with the principles of a fair trial.
In a recent case before the European Court Italy was condemned not because it has in absentia trials but because judiciary authorities had not proven beyond all reasonable doubt that the defendant was aware of proceedings against himself (Somogyi sentence of 18 May 2004- DoDo may know about this.)
So Somogyi will be able to have a re-trial. The case is fairly convoluted for this brief space. I can send you the various sentences and laws passed concerning the case, most pdf files- all in Italian except the Strasbourg sentence in French.
Here are some rulings or arguments on the case in Italian:
http://www.neldiritto.it/appdottrina.asp?id=507
http://www.cortedicassazione.it/Notizie/GiurisprudenzaPenale/SezioniSemplici/SchedaNews.asp?ID=605
I'll have to find the links to the pdf files.
Once again, in absentia trials are not questioned by the European Court. The Strasbourg sentence ruled in merit of Somogyi's argument that he had not been informed that a trial was being celebrated against him.
Italy was ordered to modify legislation to guarantee absolute safeguards for the defendant's right to know he is to undergo a trial.
Yes, it was the process irregularities that were the problem. And even though the crucial issue Strasbourg based its ruling on was connected to starting an in absentia trial without bothering much about contacting him (they just sent one letter with name and address full of typos that thus never arrived, but didn't check back with the post, nor did they contact Hungarian authorities), that was only one of many problems in Somogyi's trials, which continued once he was apprehended when crossing the Hungarian-Austrian border. The higher instances essentially rubber-stamped the paper trail leading back to the in absentia trial, instead of thoroughly considering the evidence. *Traitor*, n. A benighted individual who perceives an illusory distinction between serving his nation and abetting the criminals who govern it.
The technical-legal problem was that Italy had no provision to have a retrial since Somogyi had not presented recourse within time limits to the appellate court after the first sentence. So his grievance to have a retrial was not accepted by the Italian courts after his arrest. The European Court's decision brought about new legislation to put the burden of proof on the State that the defendant had been informed, rather than on the defendant.
So, yes, the Italian rulings against Somogyi's plaint did not thoroughly consider the evidence he presented to prove he had not been informed properly.
The French solution seems the best to me: automatic retrial.
It wasn't just his being informed properly, also the circumstances of the arrest and extradition by Austria, and the 'proof' of his guilt. As far as I know, the only hard evidence the case was based on was a testimony by the Hungarian-Romanian girlfriend of the gang leader.
This woman first settled in Hungary with the help of Somogyi's wife, then moved on to Italy, where she met the Savi brothers (one of whom was robber with mask and police officer without), and later on, she once invited Somogyi (a used car salesman) & family to Italy to sell a car of the gang. But when she testified (playing a pentito), she brought up Somogyi's name, which was linked up (either by her or by a clumsy interrogator, see below) with gun imports, and the car as payment.
The 'testimony' was inconsistent, both internally and with what Somogyi did at home at the time, but he never got the chance to present alibis or to confront with that woman, or even to give a testimony himself (he was brought to a hearing in Bologna during which he wasn't allowed to say anything), nor were the car sale documents brought by his wife considered, nor the physical fact that the 20 kg of guns would have had no place in that small Fiat beside the family, not to mention hiding it.
Regarding the inconsistencies in the gang leader's lover's testimony, this is the most bizarre part. It may be that the woman didn't intend to get Somogyi arrested, but Somogyi was unlucky. She gave the name ('Somogyi Tamásné') and personal data of the wife! But the car Tamás Somogyi drove to Austria in was on the name of the wife, and he was arrested because the border guards first checked the car's papers...
I note that Somogyi's ordeal had the further grotesque moment that, to be closer to his wife, he asked for relocation to a Hungarian prison -- and the Hungarian state, whose diplomats and international lawiers were fighting for him, not only duly obliged but erroneously put him in a higher-security prison for serious criminals (murderers etc.)!... He was released only a year ago.
I also note that there is a domestic element of the story that would fit right in with your stories of murky conspiracies in Italy -- the real arms dealers were probably also Hungarians, but ones well-connected like the policeman Savi brother... *Traitor*, n. A benighted individual who perceives an illusory distinction between serving his nation and abetting the criminals who govern it.
Second, were I to ask a dozen lawyer about it, I'd probably get as many answers.
Given that, article 8 of the Criminal Code has been applied in this case. Article 8 concerns political crimes committed in foreign territory either by an Italian citizen or a foreigner. Article 9 regulates common crime committed in foreign territory by an Italian citizen or a foreigner. Article 8 appears to allow more leeway in eventually declaring a defendant in absentia.
Now Italy like most continental European nations follows the inquisitorial system of justice while the US generally uses the adversarial system. The fundamental notion of the inquisitorial system is to establish the facts of an event, a sort of judiciary truth. So the prosecution of a person is in a certain sense secondary to this aim.
On national territory, a person who is subject to investigation or indicted must be identified, located and informed of procedures regarding him/her and when hearings will be held. Without going into detail on the articles of criminal procedure concerning "contumacy" or absence of the defendant (Codice di procedura penale, articles 420-quater, 489, 490 &c), the defendant has a right not to attend or participate in his/her preliminary hearings or trial and need only inform the court of the decision. Conversely, there are the conditions that may compel the court to declare a defendant in contumacy despite all lawful procedures undertaken to guarantee his/her presence during hearings. He/she will then be represented by his/her lawyer(s) throughout the trial whether chosen by him/her or by the court. The defendant declared in contumacy may at any moment present himself at hearings.
It may be noteworthy that in the Italian inquisitorial system a defendant has a right to silence and may make spontaneous declarations without taking oath and without cross-examination. The defendant may also ask to be interrogated. The burden of proof of whatever the defendant says always lies with the court.
Whereas the presence of the defendant appears crucial in the adversarial system where evidence is weighed before a jury between two contending parties, it does not appear indispensable for the inquisitorial system (except in rare cases of forming proof where the defendant's presence is indispensable).
The problem with Mario Lozano is not that he hasn't been identified but that he cannot be officially located. Considering the legal steps made by the Italian government for his extradition according to bilateral treaties, US State and Justice are at fault for not honouring those treaties. In fact they are ignoring Italy's grievance.
I presume that in the fine print of norms of procedure and their interpretation a certain burden lies at the feet of the US government in locating and informing Mr. Lozano. The Italian judiciary and the Minister of Justice have done all they can to inform Mr. Lozano of his rights as well as the time and location of hearings. He can at any moment present himself before the court, but whether he does so or not, he will always be represented by his lawyer(s).
So to clarify things, article 8 of the Criminal Code does not regulate trials in absentia. It simply explains the conditions of a crime committed abroad by a citizen or a foreigner that gravely offends the political interests of the State or the political rights of (a) citizen(s). Unlike articles 9 and 10 that regulate common offences the person indicted or the defendant does not have to be present on national territory. Ergo the possibility of a trial in which a defendant is declared in absentia.
In the normal routine of justice on national territory trials in absentia are common in Italy, but its always by the will of the defendant. If the defendant does not show up for a hearing the judge postpones the hearing to another date. If however the defendant continues to not show up without cause, the judge declares that the defendant is in absentia and holds the defensive lawyer as representing the case. Otherwise, a trial would never go anywhere. A very well known case was the IMI-SIR trial against Previti and Berlusconi for bribery and corruption. Berlusconi chose to be defended in absentia while Previti dragged the trial out for years by concocting one excuse after another to postpone hearings. Simply because the statute of limitations never stops ticking away in Italy, unlike most nations.
Re government inquiries. Italy can institute parliamentary inquiries which have judiciary powers. Otherwise, there is no other form of inquiry for similar cases that does not directly involve the judiciary, whether civil or military.
There was a joint US-Italy inquiry in Iraq into the Calipari incident with manifest irregularities on the American part. The Italian investigators refused to sign the final report and wrote a dissenting report which was not taken into consideration. In effect they had been excluded from the key phases of the investigation.
As far as fair trials are concerned there has always been a lively discussion on which system is actually "fairer" to the defendant.
According to la Stampa today Mario Lozano is presently on Staten Island, still with the 69th Infantry Regiment. He's put his destiny in the hands of the US military and reportedly fears a vendetta or an unfair trial. He could just as well express his version in court rather than confiding his misgivings to a media blurb. To consider Italian justice or Italians in general as motivated by vendetta is plain offensive especially confronted with a judiciary system- the American- that openly contemplates such vindictive punishments as the death penalty.
The widow of Nicola and his colleagues, as well as Giuliana Sgrena, have simply asked to find out the truth.
And if Lozano were to actually present himself before the court and eventually be found guilty after a trial? First he would get an automatic six years taken off the sentence thanks to the recent "indulgence" law. The judges would probably do a little backroom mathematics with the international scene in mind and further reduce the sentence for a variety of attenuating circumstances (first offender, clean slate, cooperative, penitent nice guy, war zone stress). At the most that would leave maybe two or three years maximum. He would be released immediately because his case would go to the appellate court. Plus, because of treaties between the States and Italy on serving time in your own nation, Lozano would go back home in no time ostensibly to serve what little time he's been meted if at all, and the case is closed. In the worst of hypothesis he'll land a contract with some PR firm.
And at the same time the offended parties would have had justice.
If instead Lozano does not wish to present himself, he'll just have to avoid visiting a considerable number of nations where he risks being arrested and extradited.
How does a trial in absentia work if the defendant completely ignores the court? I don't just mean not showing up, but not at all. Does the court hire a lawyer to represent his interests and tell him to mount the best defense he can, or is it like in certain civil cases in the US where you get a judgement by default? I'm trying to figure out how you get something resembling a fair trial without having a defendant.
As for in absentia trials in Italy, a defendant has the right to completely ignore his trial- a trial that can only be celebrated if he has been fully informed of when, where and why it is being held. It's a defendant's sovereign choice not to participate. Only in certain case can he/she be conducted to trial by the forces of law.
Your comment on statute of limitations. The Berlusconi government did pass a law modifying it by cutting statutes of limitation for all crimes for which he and his cohorts could be remotely accused. This has made it procedurally impossible to try a large number of crimes within the time limit. The Berlusconi government made further vexative laws such as the need to inform a person he is under investigation in a derisively small time limit. Other laws passed include reducing the time that a state witness may formulate his testimony or putting severe limits on the length of investigations.
Berlusconi practically destroyed the efficiency of the judiciary branch. (Not that it was all that efficient in the first place).
There is however an absolute demand that defendants has gotten informed about the proceedings. So when avoiding the law (yes, statute of limitations clock ticks on) you do not avoid the court proceedings as much as you avoid getting served.
So I guess focus is on giving defendants the possibility of assisting in their own defense, and if they choose not to, well that is their loss.
The US is obstructing justice and has pre-emptively prejudiced the defendant´s case before hand by leaving the Italian side out of the full investigation. Our knowledge has surpassed our wisdom. --Charu Saxena.
No, that's the problem - Italy doesn't have a defendant - it has an arrest warrant out for the defendant. I really, really dislike this idea that somehow the state's burden is lessened if the defendant refuses to cooperate. If you're going to suggest that you don't need anybody presenting alternative theories and pointing out holes in the government's argument, why hold a trial at all? If the prosecutor thinks he is guilty, and he won't cooperate, skip the trial altogether.
The US is obstructing justice and has pre-emptively prejudiced the defendant´s case before hand by leaving the Italian side out of the full investigation.
Are you suggesting that the US is holding back exculpatory evidence of Lonzano's innocence? On the other hand if the evidence they have would hurt his case they're helping him. Think of it on individual terms - if I saw a person commit a murder and I refuse to testify in that person's trial I may be obstructing justice, but I'm certainly not hurting that person's chances of getting off. I'm only hurting him if he's innocent. So if you believe that the US government is hurting Lonzano's case, that presumes that he isn't guilty.
I doubt that the U.S. would ever allow this, but wouldn't the ideal solution be to let Mario Lozano mount his own defence, with his own lawyers, but in absentia, maybe even with closed-circuit TV? That way the U.S. could still refuse to extradite him, but he wouldn't be denied the right to defend himself.
A strong message comes from the Italian State on the same day as the Calipari ruling. Two Italian gunners have been put on trial for having shot at an ambulance in Nassirya, killing four Iraqis.
Closed circuit TV is used in Italy, usually for trials of hardened criminals already serving time.
My personal opinion is that Mario present himself spontaneously. It would be an amazing message to the court and the Italian people.
Mario's family hails from Porto Rico. I don't know if he has Italian ancestors.
I don't want to jump to conclusions but I think most Americans would assume that a New York-based family with sons named "Mario" and "Emiliano" were of Italian origin.
Name Origin Current Lozano, Antonio Marsala, Sicily New York Lozano, Michael Paul Lazio Riverside
(Not that there's ever been any connection between Southern Italy and Spain!)
Of course it's not important, except that it shows how UNforthcoming the U.S. has been with investigators. There are stories out there claiming he was born in Puerto Rico, the Bronx, Manhattan and even one that flatly says he's "iberico" besides dozens flatly stating that it's very "ironic" that he's Italian-American.
I'll admit that the name and the initial reports that he was from New York City took me aback. Stupid, I know, but I guess I still expect American war criminals to be Southern White Protestants.
Other than that, thanks very much for your research on Lozano. Here, he's been indicated as coming from a family of Portoricans.
This is not the first time of course- and will become routine now. The Clinton administration pretended and got the same treatment in ex-Yugoslavia (which allowed one hell of a mobster racket- drugs, arms and prostitutes).
Couple this with the refusal of the US to recognize the sentences or sign on to the International Criminal Court and you've got a clincher- absolute impunity in free zones set up by invasion.
Then let's not forget that the Iraqi war is not subject to the four Geneva accords simply because it is not an international war. It's the Iraqi government helped by its allies fighting against insurgents. Try to figure that out.
But as the ex-president of the International Criminal Court for ex-Yugosalvia, Antonio Cassese, wrote recently, America set the time bomb off in 1946 when the Supreme Court admitted responsibility for war crimes by superiors in the Yamashita case. The dissenting Judge Murphy remarked that this ruling would irrevocably mark the destiny of some future president and his military chiefs. He obviously had the Bush administration in mind.
The problem is what's going to happen when anyone of them, from simple soldier on up, actually gets arrested abroad. Will America invade Amsterdam to free soldier Ryan?
Nobody is "denying him the right to defend himself", except himself and/or the USGovt. Our knowledge has surpassed our wisdom. --Charu Saxena.
As long as the civilians, doctors, reporters and humanitarian aid workers killed are "non-US" they mean very little for the US military practices on the battle field overall or for the judicial system in the US. What happens is 99% lip service and PR damage control, justice be damned.
As such, I hope the US military will accidentally kill, kidnap and torture US civilians/reporters on the field, rather than the "non-US" type, IF they have to kill any to begin with (and to them it seems like they do).
When this happens on a scale big enough and is exposed, there is a potential for a (temporary) change in activity.
Until then, it's BAU and I'm not holding my breath for any change, regardless of the outcome of the Italy trials.
Might makes right and US knows it. Everything else is a mere trick of mirrors to make it look like what its not.
