[Valutazioni conclusive, pp. 137 – 142; translated by komponisto]
Reexamination, in light of what emerged in the first-level trial and of further investigations [acquisizioni] at this level, of the factual circumstances which the Corte di Assise of first level held could be recognized as circumstantial evidence sufficient to justify a guilty verdict, has revealed — in the opinion of this Court — the substantive nonexistence [insussistenza materiale], not to mention ambiguity, of this evidence. In reality, the only evidence which remains solid is represented by the consummation of the crime of calumny (but lacking the aggravating circumstance alleged and thus [also] the evidentiary link with the crime of murder), the not-totally-proven veracity of the alibi (which is quite a different situation from holding the latter to be false), and finally the dubious reliability of witness Quintavalle. All the other evidence has collapsed in its substance: this is the case with the time of death, established by the first-level Corte di Assise as after 11 pm and identified by this Court as around 10:15 pm; it is the case with the results of the genetic investigations performed by the Scientific Police, and the analysis of prints and other traces found inside the home on Via Della Pergola, and, consequently, the identification of the murder weapon and the presence of Raffaele Sollecito and Amanda Knox in the house at the moment of the crime; [and] it is [also] the case with the supposed [ritenuta] staging of the penetration into the house on Via Della Pergola via the breaking of a window, or with the behavior displayed by the two defendants on the morning of November 2 and in the following days.
In the end, the first-level Corte di Assise, in order to reconstruct the case presented to it, concluded that it could coordinate factual elements (held to be certain in themselves, but whose meaning was not entirely unambiguous) into a unified picture [quadro] in which each one of the elements could be given [conseguire] a definitive explanation, and all of them, collectively, an unambiguous meaning, giving rise to proof of guilt.
Now, however, the “bricks” of this edifice [costruzione] have themselves collapsed; that is, this is not a question merely of a differing arrangement [una diversa ricollocazione] of these bricks, so as not to permit the realization of the planned architectural project, but rather of a lack of material necessary for the construction [in the first place]. And the collapse of the material elements of the prosecution case [il progetto accusatorio] obviously does not permit us to arrive at a verdict [pronuncia] of guilt beyond all reasonable doubt.
In truth, a reading of the ruling under appeal does not show that the first-level Corte di Assise confronted [si sia posta, lit. “posed itself”] the problem of assessing the evidence [risultanze probatorie] on the basis of the principle established by C.P.P. Article 533, since the reconstruction of facts is always carried out according to a criterion of probability. Indeed, the word “probable” (or “improbable”) occurs some 39 times in the course of the motivation. Obviously, this is only an observation about vocabulary, but a significant one all the same.
And it was to solidify [consolidare] a conviction [convinzione, i.e. belief] based on assessments of mere probability that the first-level Corte di Assise felt it necessary to come up with a motive [for the crime] which, however, while not being corroborated by any objective piece of evidence, is itself not probable in the least: the sudden choice, on the part of two fine young people, well-disposed towards others [due giovani, bravi e disponibili verso gli altri], of evil for evil’s sake, just like that, without any other point (whence the aggravating circumstance of futile reasons alleged by the Public Minister); [and] all the more incomprehensible due to having been aimed at supporting the criminal action of another youth, Rudy Guede, with whom they had no relationship (there is not, for example, proof of telephone calls or text messages among the three), and [who was] different from them in terms of personal history, character, and human condition. [This] in addition to providing an explanation, not corroborated by any objective piece of evidence and wholly unlikely [to begin with], for the presence on Via Della Pergola of a knife [taken] from the kitchen furnishings of Raffaele Sollecito’s home.
The term “probable” occurs a number of times even in the Public Minister’s closing argument, where this Court is expressly warned not to give too much weight to the expression “beyond all reasonable doubt”, insofar as this is supposedly — as the Public Minister argues — only a pleonastic [re]affirmation of principle, in which the legislator had simply recognized [recepito] concepts already elaborated by jurisprudence, without therefore requiring any quid pluris [Latin: “something more”] with respect to previous law in order to arrive at a conviction [condanna, i.e. guilty verdict].
The Public Minister’s argument can be accepted only in part. It is indeed true that, even before the legal affirmation of the principle in question, conviction could be declared only when the evidence against [the defendant] was such as to overcome the presumption of innocence, which informs all of [the relevant] law (Article 27, 2nd paragraph of the Constitution, but for example also the last part of C.P.P. Article 527, 3rd paragraph), so that, even in the presence of evidence against the defendant [that was, however,] not wholly sufficient, or contradictory, the verdict had to be one of acquittal. But to assert that the reformulation of C.P.P. Article 533 via the insertion of the principle in question, effected by Article 5 of the law of February 20, 2006, no. 46, was an operation of “mere aesthetic surgery”, so to speak, seems to debase the profound significance of this principle, which, instead, the legislator wished to reaffirm.
Moreover, examination of the legislative history [lavori parlamentari] leading to the adoption [deliberazione] of the law of February 20, 2006, no. 46 reveals that this is a principle of legal culture [civiltà giuridica] widely accepted not only by (obviously) those who voted in favor of the law, but also by those who displayed their opposition, since they did not oppose it due to disagreement with the substance of the principle, but only due to opinions about legal methodology [valutazioni di tecnica normativa], believing that coordination problems between the new text of C.P.P. Article 533 and [the existing] C.P.P. Article 530 could arise.
The condition required by this law to arrive at a verdict of guilty does not, therefore, allow one to formulate a belief in terms of probability: that is, to issue a guilty verdict, it is not sufficient for the probability of the prosecution hypothesis to be greater than that of the defense hypothesis, even when the former is significantly larger [notevolmente più numerose]; but [rather] it is necessary that every explanation other than the prosecution hypothesis not be plausible at all, according to a criterion of reasonability. In any other case, acquittal of the defendant is required.
Thus, Cass. Section 1, Ruling no. 17921 of 03-03-2010 (submitted 05-11-2010) Rv. 247449: “The judicial rule encapsulated in the formula ‘beyond all reasonable doubt’ requires that conviction be declared on the condition that the evidentiary datum acquired leave [i.e. permit] only remote eventualities, perhaps capable of being abstractly formulated and proposed as possibilities in rerum natura [Latin: “in the nature of things”], but whose realization in the concrete circumstances at hand is devoid of any minimal confirmation in the trial record, putting itself outside of the natural order of things and of normal human rationality.”
And, before that, Cass. Section 4, Ruling no. 48320 of 11-12-2009 (submitted 12-17-2009) Rv. 245879: “…In sum, the rule of beyond a reasonable doubt has definitively put in crisis that jurisprudential theory [orientamento] according to which, in the presence of more than one hypothesis reconstructing the facts, the judge was permitted to adopt one which led to conviction solely because he deemed it more probable than the others. That will no longer be permitted, because, to arrive at conviction, the judge must not only deem improbable any differing reconstruction of the facts which leads to the acquittal of the defendant, but must furthermore hold that the doubt about [i.e. arising from] this alternative hypothesis is unreasonable (that is, it must be an implausible hypothesis or at least devoid of any confirmation whatsoever).”
It is the importance of the value at stake, personal liberty of the accused, which entails an important difference in the criteria for evaluating evidence in a criminal trial as compared to a civil trial, where the value at stake has at most a financial [patrimoniale] nature:
Cass. Section 3, Ruling no. 10741 of 05-11-2009. Rv. 608391: “The determination [valutazione] of a causal nexus in the civil setting, while taking inspiration from the criteria of C.P. Articles 40 and 41, according to which an event is to be considered caused by another if the first would not have happened in the absence of the second, as well as the criterion of so-called adequate causality, on the basis of which, within a causal series, importance must be given only to those events which do not appear wholly unlikely (on an ex ante [Latin: “from before”, i.e. before the event] assessment), nevertheless presents notable differences with respect to the applicable evidentiary regime, there being a difference in the values at stake between criminal responsibility and civil responsibility. In a civil trial, the rule of preponderance of the evidence, or ‘more probable than not’ is in force, while in a criminal trial it is in fact the rule of proof ‘beyond a reasonable doubt’ which governs.”
Thus in our case, where the value at stake is the personal liberty of the defendants, the assessment of the evidence against [them] must be conducted with the most rigorous respect for the aforementioned principle.
But the only circumstantial evidence which remains solid (consummation of the crime of calumny but without the alleged aggravating circumstance, not-totally-proven veracity of alibi, dubious reliability of witness Quintavalle) does not, even taken together, allow us to arrive at the conclusion that the culpability of Amanda Knox and Raffaele Sollecito of the crime of murder (and of the other crimes instrumental thereto) has been proven in any way. The collapse in its substance of the circumstantial evidence on which the Corte di Assise of first level based its own decision exempts us from having to propose an alternative hypothesis.
Once the presence [sussistenza] of proof of guilt concerning the current defendants has been ruled out, it is indeed not up to this Court to suggest how the events may really have unfolded, nor whether the perpetrator of the crime was one or more than one, nor whether or not other investigative hypotheses have been neglected. What is relevant for the purposes of [our] decision is only the absence of proof of guilt of the current defendants.
Whence their acquittal of the crimes alleged in Charges A,B,C, [and] D for not having committed the act, and of the crime under Charge E because the act did not take place.
The acquittal of the defendants of the crimes attributed to them (with the exception of the crime of calumny, of which Amanda Knox has been declared guilty) brings with it the rejection of the request made against them by the civil parties with regard to the crimes in question: Mrs. Aldalia Tattanelli and the relatives of Meredith Kercher. The incidental appeal submitted by the Public Minister, which presupposes a verdict of guilty, must likewise be rejected.
Here ends the weighty task of this Corte di Assise, which has seen all judges, popular and professional [togati, lit. “robed”], linked by a profound feeling of justice but also of humility before the dark drama of human affairs, in the shared conviction that “Even if judicial error can never be wholly eliminated” — to quote the Supreme Court in the above-cited ruling no. 48320 of 11-12-2009 — “the rule introduced serves to signify that the law, if it tolerates the acquittal of the guilty, does not tolerate the conviction of the innocent.”
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