McCanns appeal to the European Court of Human Rights

[Alice Purjorick]

IMO.... The Portuguese system seems to be more a presumption  of guilt than innocence... As the McCann's seem to be regularly told they have not proved their innocence

That is because you fail to understand what The Presumption of Innocence is about. See CPP Article 32.

[Carana]

I assume you class me among the 'sceptics' you mentioned. I was pleased that the Portuguese investigation was reopened.

The McCann's lawyers weren't pleased. I will explain why but it will be my opinion and I accept it may be incorrect.

1. The archiving dispatch used 277/1, saying that the investigation had found enough evidence to rule out any involvement by the arguidos.

2. Once the deadline passed this dispatch became res judicata; a judgement similar in this case to an acquittal.

3. No-one's lawyers would be pleased if the investigation was reopened after their clients had been acquitted. Especially when the evidence required for the reopening had to contradict the reasons given for the acquittal (see 1)

Ok, I think I see what you mean, but I don't see it that way.

The McCanns had been pleading with the UK to get a proper review done, which they eventually agreed to, and they opened their own investigative process. Somewhere towards the end of that review, the McCanns and the T7 were declared not to be suspects.

The PT side decided to have a review as well and clearly found grounds to reopen their initial investigation, also stating that the McCanns were not suspects. They could easily have said that they refused to discuss it, but, unusually Pedro do Carmo made a statement to confirm that the McCanns weren't suspect on their side either.

Some article or other said that the McCanns were invited to a meeting with the Porto PJ, presumably to be formally informed of this news. While this UK-PJ liaision was being pursued, the Met had said that the McCanns were being kept up to date. I would find it difficult to imagine that they weren't told informally that the PJ had reviewed and discarded their involvement. IFF that's the case, I can't see why they would have been unhappy about it.

[Eleanor]

The SC described it as "close to res judicata". Evidence is basically anything that isn't forbidden in PT law. "New" is somewhat relative in this case. It wasn't as if every potential lead had been thoroughly followed up. F

or example, someone known to have been, or potentially was, in the vicinity gives a half-page statement saying after work he went home, doesn't remember what he did, and came back for work the next day (I'm paraphrasing as there are several of that nature) could hardly be classified as having been ruled out without further corroboration.

And, yes, there was supposedly new potential evidence from the private detectives' work. How much of that was deemed credible, relevant and pertinent, or whatever the phrase is, we might never know. The e-fits might have been deemed to have had greater value than non-missing pink blankets, or an obsession with fridges. IMO.

The assaults on young girls remains a mystery. If ever they were investigated and are in the not-accessible files, no one appears to have been arrested over them so far. There's absolutely no concrete evidence about what really happened to Joana, and she disappeared not far away as well.

Enough to be going on with, I would have thought. PT quietly did their own review over 2 years, prior to taking the decision to reopen it. The UK presumably shared some of the work their end during their own review process.

I hope that they are looking into The Cipriano Case as well.  Who knows?  there might be something in that, another disappeared child.

[Carana]

It is self evident it was "reopened".
We know it was not in the light of new evidence [point (m) in Judge Emilias ruling] coupled with
Pedro do Carmo's statement there was no new evidence [see earlier posts by Angelo and me]
So why was it reopened?

http://miscarriageofjustice.co/index.php?topic=8465.msg469793#msg469793

[Carana]

That is because you fail to understand what The Presumption of Innocence is about. See CPP Article 32.

Which version?

[Carana]

Another fault in the reasoning if the Sc IMO is...
Even if the McCanns had been acquitted in a full trial by the courts that would be not guilty.... and not proof of innocence..

So would amaral still have been free to write his book on how they got away with it

Any trial would have taken years. The filing for the civil one was in 2009, wasn't it? How long did that go on for?

[Robittybob1]

Any trial would have taken years. The filing for the civil one was in 2009, wasn't it? How long did that go on for?

Opinion not fact.

[Robittybob1]

That is because you fail to understand what The Presumption of Innocence is about. See CPP Article 32.

Link please or English translation of " CPP Article 32" to get an understanding of your point please.

[Carana]

It will be interesting to have sight of the basis of the complaint the McCann lawyers have raised on their behalf with the ECHR.
It will be interesting to see how the ECHR will deal with the complaint.

Just as sceptics appeared to have a vested interest in Madeleine's case not being reopened and properly investigated ... they appear to be in some denial that the McCanns would ...
(a) present an appeal to the ECHR or that
(b) there were grounds for such a case to be heard by the ECHR.

Time will tell if there will be any opportunity for informed debate on this issue.  Let's just wait and see, shall we?

Actually, I was also somewhat sceptical about potential grounds as the focus of the Convention itself doesn't seem to easily lend itself to this type of case, so... I just dropped further reading on it.

I find the issue of the SC appeal and rejection that G-Unit raised quite intriguing, although without a lot of further reading, I'm still not sure whether it would be admissible or not.

[Carana]

Opinion not fact.

The a quo murder trial of two defendants in the Ciprianos was over in 3 days with 40 witness statements and no concrete evidence. However, the final verdict by the SC was many years later.

[Carana]

I hope that they are looking into The Cipriano Case as well.  Who knows?  there might be something in that, another disappeared child.

Sometimes an investigation into a more recent case can lead to leads in a cold one. Sadly, I'm not sure she even counts as a cold one, but never say never. ;)

[G-Unit]

My undertanding is that:

Both points concern the non-feasibility of laying charges.

- 277/1 is the equivalent of a pseudo res judicata, without the hassle of a trial, but possibly without the liability of the double-jeopardy rule (haven't rummaged through the CPP to see if that exists in PT or not) if ever new evidence compelling evidence against the arguidos suddenly turned up.

- 277/2 is the equivalent of a pseudo version of the French "non-lieu" or the Scottish "not proven", again without the hassle of a trial.

The only two potential "smoking guns", IMO, were the dogs - which yielded nothing apart from some unexplained alerts and the "key" DNA results which the Public Prosecutor deemed "innocuous", confirmed by the head of the INML.

- Despite the initial flurry of excitement over Martin Smith's sudden doubt, once he'd calmed down, in context it was just a doubt that he felt he ought to communicate. So that fizzled out.

- Then there was this reconstruction idea (a year later) that never took place and which the SC latched onto. If it had been deemed crucial, the T7 + 1 could have slapped with arguido status and have been compelled to return. In the end, it appears no less crucial than Gerry's banks statements over the previous 6 months that the Home Office requested more justification for on the grounds of proportionality. None was forthcoming and it got dropped.

So, even reading the totality, I don't understand how the SC could come to the conclusion that 277/1 wasn't the appropriate choice.

1. The investigation had enough evidence to say 'the McCann's weren't involved'.
2. The investigation had enough evidence to charge them.
277/1 required that number 1 was true.

The judges pointed out that the archiving dispatch doesn't say that number 1 was true;

it does not appear anywhere in the order, that the collected evidence was sufficient to confirm that no crime was committed or that the then arguidos (here appellants) did not commit it in any sort of way (cf. quoted article 277-1).
http://www.gerrymccannsblogs.co.uk/STJ_21_03_2017_Rejected.htm

[Robittybob1]

The a quo murder trial of two defendants in the Ciprianos was over in 3 days with 40 witness statements and no concrete evidence. However, the final verdict by the SC was many years later.

Please use IMO or make it clear it is a thought.

[Carana]

I've just found this, Carana.

Snip
It was this work of reanalysis, during two and a half years, adds the same communiqué of the PJ, which "allowed to know new evidence that, by imposing the continuation of the investigation, fulfill the requirements established by article 279 nº 1 of the Code of Criminal Procedure for the reopening of the investigation ".

Ler mais em: https://www.cmjornal.pt/cm-ao-minuto/detalhe/ministerio-publico-reabre-inquerito-no-caso-maddie

Thanks, but that's the PT version of what G-Unit posted earlier as an English translation.

Here's my understanding. Happy to be corrected, I'm just trying to work it out.

279 is the Article relating to reopening an investigation.
279/1 is the "new" evidence one.
279/2 is a mechanism to appeal higher if the prosecutor refuses or delays it.

As, presumably 279/2 is irrelevant in this case, it would have been reopened under 279/1.

Where it gets a bit confusing...

277 is the article concerning archival.

Two potentailly relevant sub-points.
277 /1 (the no-evidence one)
277/2 (the insufficient evidence one).

In the legal summary, the Public Prosecutor archived it under 277 /1 (the no-evidence one).

The SC (in 2017) rejected the appeal on the grounds that the PP was wrong: it should have been archived under 277/2 (insufficient evidence)... and went on to assert that it couldn't have been reopened under 277/1, with a reference to p.9xx in some tome), but with no explanation or cite for mere mortals without access to it.

(Unless the media were all quoting the Attorney General's press release from the wrong hymn-sheet back in 2013, it was indeed opened under 277/1 (no evidence) )

As a result, that was apparently justification to uphold Amaral's right to freedom of expression as "insufficient evidence" left the door open for him to express his opinions / interpretation and presumably recuperate the fruit of his royalties.

277/1 (no evidence) on the other hand is the speed-dial version of a trial coming to court and being dismissed on the first day.

As the archival is considered as "close to res judicata", but not quite, the question then becomes how the pseudo-equivalent of an acquittal / dismissal for lack of grounds may affect the upholding of his rights to accuse them of criminal activity, both at the time, now and in the future.

However, that is what the Supreme Court of the land ruled.

It could, of course, turn out that the SC were quite right, but so far, it's not clear to me.

NB: I amended my previous post as it should have read "wrong" button.

[Carana]

Please use IMO or make it clear it is a thought.

It's not a thought or opinion. It's fact. I posted it a few days ago, with cites to trial dates and the number of witnesses.