McCanns appeal to the European Court of Human Rights

[slartibartfast]

typo...Ive be refering to 277/1 all day...

Brietta posted a cut and paste talking about 279/1 and you highlighted the 279. Previous discussions had been around 277/1 or /2. You claimed it confirmed your posts on the subject (277/1 or /2). You can see why it looks confused.

[Mr Gray]

Brietta posted a cut and paste talking about 279/1 and you highlighted the 279. Previous discussions had been around 277/1 or /2. You claimed it confirmed your posts on the subject (277/1 or /2). You can see why it looks confused.

The bottom line is

Filed under 277/1...can still reopen
Judges made no comment on the inability to reopen
No real need to change the archiving decision

[G-Unit]

you seem to be relying on this....


This is why it was judged in the ruling that it would not seem acceptable to consider that the order should be treated as a demonstration of acquittal.

In fact, 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).

The fact that the aforementioned “memorandum for the media”, published by the Attorney General office on the same day as the filing order, informed that the investigation could be reopened “if new evidence arose that could lead to serious, pertinent and consequential proceedings”, precisely points out that the order was issued pursuant to article 277-2 of the CPP.

In fact, if the investigation had been closed according to the terms of the first paragraph of the same article, it could not be reopened (cf. CPP, reviewed, 2016, 2nd ed., by Henriques Gaspar, Santos Cabral, Maia Costa, Oliveira Mendes, Pereira Madeira and Henriques da Graça, pp.929, 932-3.

from what I can see these are not the words of the judges but comments on the judgement by persons unknown

They may be persons unknown to you, but they are judges and Antonio Henriques Gasper was the President of the Supreme Court.

[Mr Gray]

They may be persons unknown to you, but they are judges and Antonio Henriques Gasper was the President of the Supreme Court.

But we don't have quotes from them... Just references to them.... And the advice is wrong... The case can be opened under 277/1

[slartibartfast]

But we don't have quotes from them... Just references to them.... And the advice is wrong... The case can be opened under 277/1

[Mr Gray]

Where does it say it cant

[Alice Purjorick]

Did you miss the word but in your last sentence?
"Which is what she ordered [BUT] that judgement was subsequently appealed successfully by Sr Amaral."

No! I missed a comma after the word ordered.

[G-Unit]

But we don't have quotes from them... Just references to them.... And the advice is wrong... The case can be opened under 277/1

It's a cite from their book, written to clarify the CCP.

[Mr Gray]

It's a cite from their book, written to clarify the CCP.

That seems very odd... Why would the SC judges need to cite a book Re the law

Are they saying that if a case is archived.. 277/1....it can't be re-opened.... So if someone  confesses they can't be charged

[Carana]

Whatever it means, but I'd say if there is a condition to be met, that condition has to be met before that clause will apply.

I found the one I was thinking of - it's Article 178. If I've understood it correctly, It's a kind of interim period (20 days) before the ruling becomes final in which the magistrate's superior, either at his/her own initiative or at that of an assistente (or someone who could apply for that status) can object and determine that charges should be laid or order that further investigations be carried out - but they'd have to be specific with an indication of how long it would take.

Obviously, neither the McCanns nor Murat were going to apply to the superior and insist on being charged lol, and
I never quite worked out whether the McCanns got their assistente status in the end, but I vaguely remember from her book that they were thinking about whether to ask for any further investigations into leads that didn't seem to have been followed up (so I think they did at the end of the process), but as any requests would have had to be specific, and there was such a lot to wade through, they decided against it.

After that "speak now or forever hold your peace" time, the case was considered archived, and could then only be reopened via the provisions in 279.

[Carana]

With thanks to Anne Guedes for the translation.

The appellants alluded to the “ostensible contradiction of grounds” because the ruling held that the closure of the criminal proceedings was determined since it had not been possible for the Public Ministry to obtain sufficient evidence of the commission of crimes by the appellants, whereas the filing order states that it occurred "because there were no indications that the appellants had committed any crime, in accordance with the provisions of article 277-1 of the CPP". First of all, let us say that the nullity pleaded consists in contradiction between the grounds and the decision and not between the grounds. In any case, it will always be said that the alleged contradiction does not exist because, in our view, although the filing order refers to the provisions of article 277-1 (note that the point 15 of the proved factual matter makes no reference to that article), what is pertinent is the content of the order and not a quoted legal provision.

Now what is obviously underscored in that order is that it was not issued because the Public Ministry had been convinced that the appellants...

Page 10 
… did not commit any crime but because it had not been possible for the Public Ministry to obtain sufficient evidence of the commission of crimes by the appellants.

It means that the archiving would have been determined under article 277-2 of the CPP, and not under the first paragraph of that article, although the latter is quoted in the order.

This is why it was judged in the ruling that it would not seem acceptable to consider that the order should be treated as a demonstration of acquittal.

In fact, 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).

The fact that the aforementioned “memorandum for the media”, published by the Attorney General office on the same day as the filing order, informed that the investigation could be reopened “if new evidence arose that could lead to serious, pertinent and consequential proceedings”, precisely points out that the order was issued pursuant to article 277-2 of the CPP.

In fact, if the investigation had been closed according to the terms of the first paragraph of the same article, it could not be reopened (cf. CPP, reviewed, 2016, 2nd ed., by Henriques Gaspar, Santos Cabral, Maia Costa, Oliveira Mendes, Pereira Madeira and Henriques da Graça, pp.929, 932-3.

 Anyhow, the intention was only to counter the appellants' assertion that, with the aforementioned order, it had been demonstrated that they were innocent.

Thus, in one form or another, whatever the grounds for the closure of the investigation and the preclusive effects of the respective decision (that has not the value of res judicata, which refers exclusively to decisions of a judicial nature, but is a “decided case” or “close to res judicata” - cf. op. cit. pp. 929 and 932), we would always consider that the public criticism and the public scrutiny of the functioning of justice were not impeded, as stated in the ruling in question.

That is to say, we would always conclude that the presumption of innocence principle would not be pertinent for the decision on the issue that we had to resolve.
http://www.gerrymccannsblogs.co.uk/STJ_21_03_2017_Rejected.htm

Taking this bit: In fact, if the investigation had been closed according to the terms of the first paragraph of the same article, it could not be reopened (cf. CPP, reviewed, 2016, 2nd ed., by Henriques Gaspar, Santos Cabral, Maia Costa, Oliveira Mendes, Pereira Madeira and Henriques da Graça, pp.929, 932-3.

Doesn't make sense to me at the moment. They're quoting a work that appears to have been published in 2016 concerning the CPP, about a case that was reopened in 2013.

There's no explanation as to why it couldn't be opened under 277/1

i just looked at the 2014 CCP earlier and I can't see any difference in the wording compared to the 2007 one.

If it had been reopened under 277/2, why did Pedro do Carmo make a rare public statement to clarify that the parents weren't suspects?

I can't find this "memorandum for the media". Anyone got a link?

[Carana]

Nope. I still don't get it. :(


From a PT citizens' rights site:
What does the presumption of innocence mean concerning an arguido? What rights does this presumption give?

The presumption of innocence means that everyone is considered innocent until he has been convicted by a final judgment - that is, of which he can no longer appeal - in a criminal court.
(...)

O que significa a presunção de inocência do arguido? Que direitos dá essa presunção?
Perguntas

A presunção de inocência significa que toda a pessoa é considerada inocente até ter sido condenada por sentença transitada em julgado — isto é, da qual já não se pode recorrer — num tribunal criminal.


https://www.direitosedeveres.pt/q/acesso-ao-direito-e-aos-tribunais/garantias-de-defesa-no-processo-criminal/o-que-significa-a-presuncao-de-inocencia-do-arguido-que-direitos-da-essa-presuncao


From the SC rejection:
 Anyhow, the intention was only to counter the appellants' assertion that, with the aforementioned order, it had been demonstrated that they were innocent.

Thus, in one form or another, whatever the grounds for the closure of the investigation and the preclusive effects of the respective decision (that has not the value of res judicata, which refers exclusively to decisions of a judicial nature, but is a “decided case” or “close to res judicata” - cf. op. cit. pp. 929 and 932), we would always consider that the public criticism and the public scrutiny of the functioning of justice were not impeded, as stated in the ruling in question.

That is to say, we would always conclude that the presumption of innocence principle would not be pertinent for the decision on the issue that we had to resolve.

Did Isabel Duarte actually say "demonstrated that they were innocent"? If so, perhaps not the best phrasing.

According to the SC's logic, as they weren't tried and found innocent, they are therefore not entitled to the presumption of innocence - i.e., everyone is presumed guilty until they have been proved innocent by the court of last instance.

[Carana]

Can someone explain to me how that reconstruction could have demonstrated / proven their innocence in practical terms? And innocence concerning what crime?


Here are the points that it was supposed to cover:

E - About the Interest of the Reconstitution

Taking into account that there were certain points in the arguidos' and witnesses' statements that revealed, apparently at least, contradiction or that lacked physical confirmation, it was decided to carry out the "reconstitution of the fact", a diligence that is consecrated in article 150 of the Penal Process Code in the sense of duly clarifying, on the very location of the facts , the following very important details, among others:

1 - The physical, real and effective proximity between Jane Tanner, Gerald McCann and Jeremy Wilkins, at the moment when the first person walked by them, and which coincided with the sighting of the supposed suspect, carrying a child. It results, in our perspective, strange that neither Gerald McCann nor Jeremy Wilkins saw her, or the alleged abductor, despite the exiguity of the space and the peacefulness of the area;

2 - The situation concerning the window to the bedroom where Madeleine slept, together with the twins, which was open, according to Kate. It seemed then necessary to clarify if there was a draught, since movement of the curtains and pressure under the bedroom door are mentioned, which, eventually, could be verified through the reconstitution;

3 - The establishment of a timeline and of a line of effective checking on the minors that were left alone in the apartments, given that, if it is believed that such checking was as tight as the witnesses and the arguidos describe it, it would be, at least, very difficult to reunite conditions for the introduction of an abductor in the residence and the posterior exit of said abductor, with the child, namely through a window with scarce space. It is added that the supposed abductor could only pass, through that window, holding the minor in a different position (vertical) from the one that witness JANE TANNER saw (horizontal);

4 - What happened during the time lapse between approximately 6.45/7 p.m. - the time at which MADELEINE was seen for the last time, in her apartment, by a different person (David Payne) from her parents or siblings - and the time at which the disappearance is reported by Kate Healy - at around 10 p.m.;

5 - The obvious and well-known advantages of immediate appreciation of evidence, or in other words, the fulfilment of the principle of contiguity of evidence in order to form a conviction, as firm as possible, about what was seen by Jane Tanner and the other interposers, and, eventually, to dismiss once and for all any doubts that may subsist concerning the innocence of the missing [child's] parents.
http://www.mccannpjfiles.co.uk/PJ/LEGAL_SUMMARY.htm

[Carana]

Starting with the first one:


1 - The physical, real and effective proximity between Jane Tanner, Gerald McCann and Jeremy Wilkins, at the moment when the first person walked by them, and which coincided with the sighting of the supposed suspect, carrying a child. It results, in our perspective, strange that neither Gerald McCann nor Jeremy Wilkins saw her, or the alleged abductor, despite the exiguity of the space and the peacefulness of the area;

Ok. Neither Gerry nor Jez saw Jane and they don't agree on their recollections of exactly where the three of them were standing. The road had two pavements and the road appears to be 3 car-widths wide.

How, concretely, would having Jane flip-flop by again with Gerry and Jez chatting away with a baby in a buggy demonstrate the parents' innocence? Or even their guilt, for that matter?

Edited for typo.

[Carana]

2 - The situation concerning the window to the bedroom where Madeleine slept, together with the twins, which was open, according to Kate. It seemed then necessary to clarify if there was a draught, since movement of the curtains and pressure under the bedroom door are mentioned, which, eventually*, could be verified through the reconstitution;

Ok. The window issue. Kate goes through the motions of walking in and her whoosh scene. Assuming that the reconstruction took place on an evening with exactly the same wind conditions (which could only be an approximation as it wasn't as if there were 10000 monitors surrounding the flat to make precise measurements anyway).

If the curtains whoosh and the door slams. Does that mean she's innocent?

If the curtains don't whosh and the door doesn't slam on recon night, does that mean she's guilty of whatever happened to her daughter?

* Eventually - to check the word used in PT. I suspect it doesn't actually mean eventually as used in English, but possibly / potentially.