McCanns appeal to the European Court of Human Rights

[Brietta]

This is my take on what is happening now.

With the judgement of the SC, reported in every British newspaper, the McCanns can't be seen to be doing nothing to overturn that judgement. Of course we who are interested in the case know that no matter what the ECHR decide, and the McCanns still have to have their application accepted, it will not make an iota of difference to the SC judgement however the average tabloid reader wouldn't and this is who these articles are targeted at.

IMO the McCanns are well aware that their application will not succeed and these articles are merely a holding manoeuvre, printed in the knowledge that your average tabloid reader has a very, very short memory.

9 FEBRUARY 2017
Madeleine McCann’s parents have not been ruled innocent when it comes to their daughter’s disappearance, a judge in Portugal’s highest court has said.
http://www.telegraph.co.uk/news/2017/02/09/madeleine-mccanns-parents-have-not-ruled-innocent-judge-says/

9 February 2017
Judges made it clear in their decision their job was not to decide whether the McCanns bore any criminal responsibility over their daughter's disappearance and it would be wrong for anyone to draw any inferences about the couple's guilt or innocence from their ruling.

But they added: 'It should not be said that the appellants were cleared via the ruling announcing the archiving of the criminal case.

'In truth, that ruling was not made in virtue of Portugal's Public Prosecution Service having acquired the conviction that the appellants hadn't committed a crime.

'The archiving of the case was determined by the fact that public prosecutors hadn't managed to obtain sufficient evidence of the practice of crimes by the appellants.

'There is therefore a significant, and not merely a semantic difference, between the legally admissible foundations of the archive ruling.

'It doesn't therefore seem acceptable that the ruling, based on the insufficiency of evidence, should be equated to proof of innocence.

http://www.dailymail.co.uk/news/article-4206214/Court-says-Madeleine-McCann-s-parents-HAVEN-T-cleared.html#ixzz4sMyED0uo


February 9 2017
The Supreme Court judges said that lifting their status as formal suspects does not mean that they were innocent.

The court said it wasn't their job to determine whether the McCanns bore any criminal responsibility over their daughter's disappearance and said it would be wrong for anyone to draw any inferences about the couple's guilt or innocence from their ruling.

According to the Telegraph, they said: "It should not be said that the appellants were cleared via the ruling announcing the archiving of the criminal case. In truth, that ruling was not made in virtue of Portugal's Public Prosecution Service having acquired the conviction that the appellants hadn't committed a crime.

"The archiving of the case was determined by the fact that public prosecutors hadn't managed to obtain sufficient evidence of the practice of crimes by the appellants.

"There is therefore a significant, and not merely a semantic difference, between the legally admissible foundations of the archive ruling. It doesn't therefore seem acceptable that the ruling, based on the insufficiency of evidence, should be equated to proof of innocence."

They added: "It's true that the aforementioned criminal inquiry ended up being archived, namely because none of the apparent evidence that led to the appellants being made 'arguidos' was subsequently confirmed or consolidated.

"However even the archive ruling raises serious concerns relating to the truth of the allegation that Madeleine was kidnapped."
http://www.independent.ie/world-news/europe/britain/madeleine-mccanns-parents-have-not-been-ruled-innocent-judge-says-35437360.html


It seems I was wrong about semantics not being an issue should the McCann request to be heard by the European Court be granted.

It is a word which has appeared in the offending opinion of the judges who should in my opinion have implemented their own caveat and borne in mind what they were judging and not that about which they admitted they had no locus.

It has taken ten years to get to this stage in Portugal;  making a four year wait for the European Court to sit in judgement should the case be accepted.

If you were in a similar situation as the McCanns and were content to cowtow to such a ruling that would be a matter for you.

Were I in the McCann's situation I would be doing exactly what they are ... and challenging a supreme court ruling which had driven a coach and horses through my reputation and my honour.

[Alice Purjorick]

IMO the McCanns legal team have not previously covered themselves in glory so that experience suggests that this effort could follow a similar course.

I wouldn't be too harsh on the "avocados". They take their client's instructions and then make the best fist of those instructions they can.

[Brietta]

In this case they will be asked to decide if Portugal violated any of the McCann's rights under the European Convention on Human Rights.

I don't know which of their human rights they feel have been violated, but two have been mentioned during the various proceedings; Article 10 concerning freedom of expression and Article 6:2 concerning the presumption of innocence.

Freedom of expression allows people to give their opinion so long as certain restrictions are observed. The various judges found that Amaral didn't breach any of those restrictions.

The presumption of innocence applies to criminal, not civil proceedings. The judges pointed this out and referred to ECHR cases where the ECHR made the same point.

I don't know what 'semantics' are being referred to.

You say: "The presumption of innocence applies to criminal, not civil proceedings. The judges pointed this out and referred to ECHR cases where the ECHR made the same point."

Why then do you suppose the Portuguese appeal court judges hearing a civil case ... chose to make a pronouncement on a criminal case ... and declared former arguidos guilty (not innocent) while questioning facts of the criminal case?

[Alice Purjorick]

In my opinion it all depends very much on how the judges in the European Court view the matter of the abrogation of the McCann Human Rights by the learned Portuguese judges.

All will be revealed in the fullness of time.

Would you perchance be stating that as a fact? I thought that was to be determined by the ECHR?

[G-Unit]

I have been reading an opinion given by a Portuguese 'jurist' (someone who researches and studies jurisprudence (theory of law)). Apart from the points below, it explains very well what was wrong with the McCann's legal arguments and alludes to mistakes made in the first instance judgement; well worth a read imo.

The piece was written following the McCann's application to annul the Supreme Court judgement and it forecast the rejection of that application and why it would be rejected. In the writer's opinion that application was made in order to pave the way for an application to the ECHR. The expert's opinion on any such application was;

They are free of going to the ECtHR, of course. But if they go there, it will fall flat on its face. And for the very reasons previously invoked.
https://joana-morais.blogspot.co.uk/2017/03/on-mccanns-request-for-annulment-of.html

[G-Unit]

You say: "The presumption of innocence applies to criminal, not civil proceedings. The judges pointed this out and referred to ECHR cases where the ECHR made the same point."

Why then do you suppose the Portuguese appeal court judges hearing a civil case ... chose to make a pronouncement on a criminal case ... and declared former arguidos guilty (not innocent) while questioning facts of the criminal case?

I'm sorry, but I wasn't aware that the appeal court judges did that. Could you please cite your evidence that they;

 'chose to make a pronouncement on a criminal case ... and declared former arguidos guilty (not innocent) while questioning facts of the criminal case?'

[Brietta]

I have been reading an opinion given by a Portuguese 'jurist' (someone who researches and studies jurisprudence (theory of law)). Apart from the points below, it explains very well what was wrong with the McCann's legal arguments and alludes to mistakes made in the first instance judgement; well worth a read imo.

The piece was written following the McCann's application to annul the Supreme Court judgement and it forecast the rejection of that application and why it would be rejected. In the writer's opinion that application was made in order to pave the way for an application to the ECHR. The expert's opinion on any such application was;

They are free of going to the ECtHR, of course. But if they go there, it will fall flat on its face. And for the very reasons previously invoked.
https://joana-morais.blogspot.co.uk/2017/03/on-mccanns-request-for-annulment-of.html

I am sorry ... who is this jurist to whom you refer?  Is it Morais?

[G-Unit]

Posting opinion as fact is against forum rules. If your statement was your opinion then it should include a caveat. If it's factual it should include cites. In the absence of caveats I was entitled to assume that you thought you were stating facts, in which case asking for cites is neither goading or stupid.

Your statement said;

"Why then do you suppose the Portuguese appeal court judges hearing a civil case ... chose to make a pronouncement on a criminal case ... and declared former arguidos guilty (not innocent) while questioning facts of the criminal case?"

What you don't tell us is which judges you are referring to (Appeal Court or Supreme Court); why you think they 'chose' to comment on a criminal case; why you think they declared anyone guilty; which facts they questioned.

[slartibartfast]

I have been reading an opinion given by a Portuguese 'jurist' (someone who researches and studies jurisprudence (theory of law)). Apart from the points below, it explains very well what was wrong with the McCann's legal arguments and alludes to mistakes made in the first instance judgement; well worth a read imo.

The piece was written following the McCann's application to annul the Supreme Court judgement and it forecast the rejection of that application and why it would be rejected. In the writer's opinion that application was made in order to pave the way for an application to the ECHR. The expert's opinion on any such application was;

They are free of going to the ECtHR, of course. But if they go there, it will fall flat on its face. And for the very reasons previously invoked.
https://joana-morais.blogspot.co.uk/2017/03/on-mccanns-request-for-annulment-of.html

Good article.

[G-Unit]

Good article.

I thought so because understanding what the McCann's core arguments were is difficult, so the summary is helpful. It also helps with understanding what the Supreme Court judges were addressing and why.

[misty]

I assume that the archiving report is a legal document in the Portuguese justice system. The courts used this document to verify the facts contained in Amaral's book, which were gathered under judicial secrecy. Notwithstanding the fact that Amaral broke his duty of reserve and  the DVDs of the files were not in the public domain when his book was published, what right did the SC have to retrospectively alter the content of the very report used to verify Amaral's opinions to the detriment of 2 named arguidos?

[stephen25000]

I assume that the archiving report is a legal document in the Portuguese justice system. The courts used this document to verify the facts contained in Amaral's book, which were gathered under judicial secrecy. Notwithstanding the fact that Amaral broke his duty of reserve and  the DVDs of the files were not in the public domain when his book was published, what right did the SC have to retrospectively alter the content of the very report used to verify Amaral's opinions to the detriment of 2 named arguidos?

The overwhelming majority of the information was already in the public domain prior to the book and DVD release.

[misty]

The overwhelming majority of the information was already in the public domain prior to the book and DVD release.

No it wasn't. Very few of the witness/arguido statements were in the public domain.
Do you care to have a stab at the main point in my question?

[stephen25000]

No it wasn't. Very few of the witness/arguido statements were in the public domain.
Do you care to have a stab at the main point in my question?

I'm not just talking about the statements.

The theory that Madeleine had died was already in the public domain.

Basically, you attack Amaral at every turn.

You might have sussed by now, you're barking up the wrong tree. legal action is over, as regards against Amaral.

[Miss Taken Identity]

9 FEBRUARY 2017
Madeleine McCann’s parents have not been ruled innocent when it comes to their daughter’s disappearance, a judge in Portugal’s highest court has said.
http://www.telegraph.co.uk/news/2017/02/09/madeleine-mccanns-parents-have-not-ruled-innocent-judge-says/

9 February 2017
Judges made it clear in their decision their job was not to decide whether the McCanns bore any criminal responsibility over their daughter's disappearance and it would be wrong for anyone to draw any inferences about the couple's guilt or innocence from their ruling.

But they added: 'It should not be said that the appellants were cleared via the ruling announcing the archiving of the criminal case.

'In truth, that ruling was not made in virtue of Portugal's Public Prosecution Service having acquired the conviction that the appellants hadn't committed a crime.

'The archiving of the case was determined by the fact that public prosecutors hadn't managed to obtain sufficient evidence of the practice of crimes by the appellants.

'There is therefore a significant, and not merely a semantic difference, between the legally admissible foundations of the archive ruling.

'It doesn't therefore seem acceptable that the ruling, based on the insufficiency of evidence, should be equated to proof of innocence.

http://www.dailymail.co.uk/news/article-4206214/Court-says-Madeleine-McCann-s-parents-HAVEN-T-cleared.html#ixzz4sMyED0uo


February 9 2017
The Supreme Court judges said that lifting their status as formal suspects does not mean that they were innocent.

The court said it wasn't their job to determine whether the McCanns bore any criminal responsibility over their daughter's disappearance and said it would be wrong for anyone to draw any inferences about the couple's guilt or innocence from their ruling.

According to the Telegraph, they said: "It should not be said that the appellants were cleared via the ruling announcing the archiving of the criminal case. In truth, that ruling was not made in virtue of Portugal's Public Prosecution Service having acquired the conviction that the appellants hadn't committed a crime.

"The archiving of the case was determined by the fact that public prosecutors hadn't managed to obtain sufficient evidence of the practice of crimes by the appellants.

"There is therefore a significant, and not merely a semantic difference, between the legally admissible foundations of the archive ruling. It doesn't therefore seem acceptable that the ruling, based on the insufficiency of evidence, should be equated to proof of innocence."

They added: "It's true that the aforementioned criminal inquiry ended up being archived, namely because none of the apparent evidence that led to the appellants being made 'arguidos' was subsequently confirmed or consolidated.

"However even the archive ruling raises serious concerns relating to the truth of the allegation that Madeleine was kidnapped."
http://www.independent.ie/world-news/europe/britain/madeleine-mccanns-parents-have-not-been-ruled-innocent-judge-says-35437360.html


It seems I was wrong about semantics not being an issue should the McCann request to be heard by the European Court be granted.

It is a word which has appeared in the offending opinion of the judges who should in my opinion have implemented their own caveat and borne in mind what they were judging and not that about which they admitted they had no locus.

It has taken ten years to get to this stage in Portugal;  making a four year wait for the European Court to sit in judgement should the case be accepted.

If you were in a similar situation as the McCanns and were content to cowtow to such a ruling that would be a matter for you.

Were I in the McCann's situation I would be doing exactly what they are ... and challenging a supreme court ruling which had driven a coach and horses through my reputation and my honour.

"The Supreme Court judges said that lifting their status as formal suspects does not mean that they were innocent."

Yes, correct, it doesn't say they are guilty either. It is just an archived, unsolved case and the parents have not been ruled out. Nothing illegal about that at all. It was their lawyer who claimed they were deemed innocent (cleared)not 'presumed innocent' but innocent quite  different fish tank altogether.

Just to  make it even more clearer than that-They may still to this day be suspects, that does not mean they are not presumed innocent it means they are suspected of something.




"The court said it wasn't their job to determine whether the McCanns bore any criminal responsibility over their daughter's disappearance and said it would be wrong for anyone to draw any inferences about the couple's guilt or innocence from their ruling.

Yes, indeed correct again this was a civil court where the McCanns were not accused of anything as they were  pursuing Amaral for money.
They have not been charged- arrested and taken to court accused and tried on Amarals book. It doesn't work that way see.

So let us do a round up...
CRIMINAL COURT:
No criminal court has accused the McCanns without presuming they are innocent. No Police force have declared them innocent as the case was archived, and they may be presumed innocent but still under suspicion.
CIVIL COURT:
In the civil court It wasn't their job to determine whether the McCanns bore any criminal responsibility .

I hope this is clearer now.  So anyway regardless  of all that the McCanns are not going to 'clear their name' because the ECHR don't do individual cases.