McCanns appeal to the European Court of Human Rights

[G-Unit]

I do not understand the following from your post:  "The McCann's lawyers were unhappy with the reopening of the Portuguese investigation because they saw it as equal to an acquittal by a court. I for one thought it was a good idea."

Please explain.

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)

[G-Unit]

Possibly. Or the SC might.

Intriguingly clear as mud, IMO.

Possibly, but I would be more inclined to think the SC knew Portuguese law better than the prosecutor did. They are the highest judges in the land, he is a lawyer.

[Mr Gray]

It's certainly not simple lol. If 277/1 is equal to being acquitted by the courts, as Duarte argued (res judicatia), there may have been strict conditions on the type of new evidence used to reopen the case. I know there are in English law and the Director of Public Prosecutions has to give permission.
https://www.cps.gov.uk/legal-guidance/retrial-serious-offences

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

[slartibartfast]

something else you dont seem to have an answer for.......the case was archived under article 271/1.....yet was reopened.....how is that possible given your understanding

You missed the bit where the SC said the reference to a article for closing was a minor item and what was said in the judgement was the important bit.

[Carana]

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.

[Carana]

LOL G-Unit, I hit submit before reading your post. :)

[Brietta]

Public Prosecutor reopens inquiry into Maddie case

October 24, 2013 at 13:04

The Public Prosecutor's Office announced on Thursday the reopening of the inquiry into the disappearance of the English child Madeleine McCann. The reopening of the investigation follows a proposal from the PJ and given the "presentation of new elements".

The case is reopened after a team of investigators from PJ do Porto have re-examined the disappearance of the British girl with a fine comb.

It is recalled that the disappearance in 2007 was filed in July 2008 by the Portuguese Public Ministry.

The team that returned to analyze the case is from the Regional Section of Investigation and Criminal Prevention of the PJ of Porto.

It is a brigade with experience in cases of disappearance. One example of success was that of a young woman from Lamego, Carina Ferreira, whose body was found after a month of searching a ravine for a motorway.

This Thursday, a note from the Attorney General's Office (PGR) said that the MP ordered the reopening of the investigation into the disappearance of the child Madeleine McCann, according to the criminal procedural law that "the investigation can only be reopened if new evidence that invalidates the grounds invoked by the MP in the filing order "of the case.

The PGR further clarifies that the reopening of the investigation follows a proposal from the PJ and given the "presentation of new evidence that justify the continuation of the investigation".

The new evidence provided by the PJ to the MP is not disclosed, and it is limited to the PGR that in the investigation, in Portimão, "the competent Criminal Investigation Judge was required to postpone access to the case for an objectively indispensable period to the conclusion of the investigation, because it is understood that the regime of secrecy of justice is required ".

On 4 October, officials at Scotland Yard reported in London that the PJ had already formed a new team to work on lines of investigation identified by the British police on the disappearance of the child.

Madeleine McCann disappeared a few days before she was four years old, on May 3, 2007, from the bedroom where she slept with the two twin brothers in an apartment in a tourist village in the Algarve, while her parents had dinner with a group of friends in a nearby restaurant .

Portugal was one of the 31 countries whose rogatory letter was sent with a request for assistance relating to elements that British police want to see clarified, relating to persons or telephone data.

Detective Chief Inspector Andy Redwood then said that British police are trying to discover the owners of the cell phones identified as having been in the area and height of the disappearance.

In June, British police announced the existence of "38 people of interest" who wanted to question, including several Portuguese. "It's people who were within a radius of the disappearance site and who there are reasons to be suspicious of. It takes a little more than circumstantial issues," Redwood explained.

The 12 Brits initially identified were joined by three others, who are already being investigated, but the inspector believes that "possibly will be eliminated" soon from the list.

Scotland Yard, working on the case a year ago, is confident he has found relevant "new information," based on the 40,000 documents and clues collected by police in Portugal, UK and eight different private detectives.
https://www.jn.pt/nacional/dossiers/o-caso-maddie-mccann/ultimas/interior/ministerio-publico-reabre-inquerito-sobre-caso-maddie-3494730.html

[slartibartfast]

You missed the bit where the SC said the reference to a article for closing was a minor item and what was said in the judgement was the important bit.

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.

http://www.gerrymccannsblogs.co.uk/STJ_21_03_2017_Rejected.htm

[Carana]

It's certainly not simple lol. If 277/1 is equal to being acquitted by the courts, as Duarte argued (res judicatia), there may have been strict conditions on the type of new evidence used to reopen the case. I know there are in English law and the Director of Public Prosecutions has to give permission.
https://www.cps.gov.uk/legal-guidance/retrial-serious-offences

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.

[Carana]

Public Prosecutor reopens inquiry into Maddie case

October 24, 2013 at 13:04

The Public Prosecutor's Office announced on Thursday the reopening of the inquiry into the disappearance of the English child Madeleine McCann. The reopening of the investigation follows a proposal from the PJ and given the "presentation of new elements".

The case is reopened after a team of investigators from PJ do Porto have re-examined the disappearance of the British girl with a fine comb.

It is recalled that the disappearance in 2007 was filed in July 2008 by the Portuguese Public Ministry.

The team that returned to analyze the case is from the Regional Section of Investigation and Criminal Prevention of the PJ of Porto.

It is a brigade with experience in cases of disappearance. One example of success was that of a young woman from Lamego, Carina Ferreira, whose body was found after a month of searching a ravine for a motorway.

This Thursday, a note from the Attorney General's Office (PGR) said that the MP ordered the reopening of the investigation into the disappearance of the child Madeleine McCann, according to the criminal procedural law that "the investigation can only be reopened if new evidence that invalidates the grounds invoked by the MP in the filing order "of the case.

The PGR further clarifies that the reopening of the investigation follows a proposal from the PJ and given the "presentation of new evidence that justify the continuation of the investigation".

The new evidence provided by the PJ to the MP is not disclosed, and it is limited to the PGR that in the investigation, in Portimão, "the competent Criminal Investigation Judge was required to postpone access to the case for an objectively indispensable period to the conclusion of the investigation, because it is understood that the regime of secrecy of justice is required ".

On 4 October, officials at Scotland Yard reported in London that the PJ had already formed a new team to work on lines of investigation identified by the British police on the disappearance of the child.

Madeleine McCann disappeared a few days before she was four years old, on May 3, 2007, from the bedroom where she slept with the two twin brothers in an apartment in a tourist village in the Algarve, while her parents had dinner with a group of friends in a nearby restaurant .

Portugal was one of the 31 countries whose rogatory letter was sent with a request for assistance relating to elements that British police want to see clarified, relating to persons or telephone data.

Detective Chief Inspector Andy Redwood then said that British police are trying to discover the owners of the cell phones identified as having been in the area and height of the disappearance.

In June, British police announced the existence of "38 people of interest" who wanted to question, including several Portuguese. "It's people who were within a radius of the disappearance site and who there are reasons to be suspicious of. It takes a little more than circumstantial issues," Redwood explained.

The 12 Brits initially identified were joined by three others, who are already being investigated, but the inspector believes that "possibly will be eliminated" soon from the list.

Scotland Yard, working on the case a year ago, is confident he has found relevant "new information," based on the 40,000 documents and clues collected by police in Portugal, UK and eight different private detectives.
https://www.jn.pt/nacional/dossiers/o-caso-maddie-mccann/ultimas/interior/ministerio-publico-reabre-inquerito-sobre-caso-maddie-3494730.html

Good find, Brietta.

That's 277/1.

So what's all this about that it couldn't have been reopened under that sub-point? It was, unless the reporter invented it and coincidentally hit upon the wrong sub-point.

[Brietta]

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)

I think your opinion is entirely wrong.
I do believe that the McCann lawyers would be 100% behind their clients in their long drawn out and hard fought battle to have Madeleine's case re-investigated and their success in having achieved that aim successfully.

[Alice Purjorick]

we have already been through all this and disagree so I dont see the point in going through it again...

Every time I ask that particular question you fail dismally to answer it.

[Alice Purjorick]

Good find, Brietta.

That's 277/1.

So what's all this about that it couldn't have been reopened under that sub-point? It was, unless the reporter invented it and coincidentally hit upon the correct sub-point.

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?

[Mr Gray]

Every time I ask that particular question you fail dismally to answer it.

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

[Brietta]

Good find, Brietta.

That's 277/1.

So what's all this about that it couldn't have been reopened under that sub-point? It was, unless the reporter invented it and coincidentally hit upon the correct sub-point.

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