McCanns appeal to the European Court of Human Rights

[Robittybob1]

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, concretly, 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?

Gerry and Jez would only need to keep facing each other and not look up or over to Jane no matter how much noise she made.  - simple.

[Robittybob1]

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.

You don't need the whole crew there to test this one.  Just get the weather to be the same.

[G-Unit]

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.

The McCann's lawyers argued that the archiving dispatch was res judicata, so had the same standing as a court decision. As it had declared them innocent (277/1) anyone accusing them of a crime (Amaral et al) was depriving them of the presumption of innocence.

The SC judges said it wasn't res judicata, and anyway it didn't declare them innocent. Reading the whole text it was clear to them that it was closed due to insufficient evidence, not because enough evidence had been gathered to rule them out. That meant it was archived under 277/2 and the prosecutors had used the wrong part of the Article.

[slartibartfast]

Where does it say it cant

It’s a supreme court document with the words you questioned in.

[Robittybob1]

The McCann's lawyers argued that the archiving dispatch was res judicata, so had the same standing as a court decision. As it had declared them innocent (277/1) anyone accusing them of a crime (Amaral et al) was depriving them of the presumption of innocence.

The SC judges said it wasn't res judicata, and anyway it didn't declare them innocent. Reading the whole text it was clear to them that it was closed due to insufficient evidence, not because enough evidence had been gathered to rule them out. That meant it was archived under 277/2 and the prosecutors had used the wrong part of the Article.

That is a well put argument G-unit.

[slartibartfast]

I agree. There is absolutely no way a reconstruction involving Kate & Gerry could have shown that someone did enter by the window, especially as forensics showed nothing. If the McCanns couldn't prove that entry was gained in that manner, where did it leave their testimonies/innocence once Jane had been discredited?

IMO what a reconstruction may have challenged is the checking routine. Which ironically enough could have given more time for Madeleine to go missing without being observed.

[G-Unit]

That is a well put argument G-unit.

Thank you Rob.

On the
matter of the reconstitution; it may have been a complete waste of time or it may not. The fact that the witnesses refused to attend is the important point. Because they refused the prosecutor was able to write;

We believe that the main damage was caused to the McCann arguidos, who lost the possibility to prove what they have protested since they were constituted arguidos: their innocence towards the fateful event
http://www.mccannpjfiles.co.uk/PJ/LEGAL_SUMMARY.htm

That passage states quite clearly that the McCanns remained uncleared at the time of the archiving. 277/1 is used when the prosecutor has concluded that there's enough evidence to show that the arguidos are innocent.

[Alice Purjorick]

a comma is like the word but.

A comma is a punctuation mark; "but" is a word.
You asked me if I had omitted BUT, I said no I had omitted a comma. As I was the author of the piece I was in a better position to know how I intended to convey my message than you were.
I am not interested in silly ping pong games about English grammar so let's call it a day at this point.

[Robittybob1]

A comma is a punctuation mark; "but" is a word.
You asked me if I had omitted BUT, I said no I had omitted a comma. As I was the author of the piece I was in a better position to know how I intended to convey my message than you were.
I am not interested in silly ping pong games about English grammar so let's call it a day at this point.

I still think this very well written summary requires a "but" in it.
"Yeah, but our laws are considered "third world" in large parts of the west.
The McCann v Amaral case ceased to be a libel trial early doors.
Bearing in mind it was 1.2MM writ, most of it was thrown out on the first pass. The final judgment in the court of first instance came down to whether Mr Amaral, as a former employee of the state, remained bound by the same rules in retirement as he was when in employment. If so and he had profited by bucking those rules the judge had to decide how the balance be redressed and rule on it, to whit pay the dosh plus interest to the plaintiff. Which is what she ordered[, or but] that judgement was subsequently appealed to by Mr. Amaral"

[Mr Gray]

The McCann's lawyers argued that the archiving dispatch was res judicata, so had the same standing as a court decision. As it had declared them innocent (277/1) anyone accusing them of a crime (Amaral et al) was depriving them of the presumption of innocence.

The SC judges said it wasn't res judicata, and anyway it didn't declare them innocent. Reading the whole text it was clear to them that it was closed due to insufficient evidence, not because enough evidence had been gathered to rule them out. That meant it was archived under 277/2 and the prosecutors had used the wrong part of the Article.

There are so many points of contention here it's difficult to know where to start...

Do you have a cite fir the McCann's felt they had been declared innocent..

What the SC seems to have done... As Carana also pointed out... Is replace the McCann's presumption  of innocence with a presumption of guilt.... Another possible point fir the ECHR

[Venturi Swirl]

Thank you Rob.

On the
matter of the reconstitution; it may have been a complete waste of time or it may not. The fact that the witnesses refused to attend is the important point. Because they refused the prosecutor was able to write;

We believe that the main damage was caused to the McCann arguidos, who lost the possibility to prove what they have protested since they were constituted arguidos: their innocence towards the fateful event
http://www.mccannpjfiles.co.uk/PJ/LEGAL_SUMMARY.htm

That passage states quite clearly that the McCanns remained uncleared at the time of the archiving. 277/1 is used when the prosecutor has concluded that there's enough evidence to show that the arguidos are innocent.

Whether or not enough evidence had been gathered, they had the right to the presumption of innocence did they not?

[Mr Gray]

Whether or not enough evidence had been gathered, they had the right to the presumption of innocence did they not?

It would seem the SC thought not

[Venturi Swirl]

It would seem the SC thought not

Then why not?  That is the 64,000 euro question.

[Robittybob1]

Whether or not enough evidence had been gathered, they had the right to the presumption of innocence did they not?

G-unit may be able to explain this, but it has to do with being able to prove innocence.

[Mr Gray]

Then why not?  That is the 64,000 euro question.

To me the SC drove a coach and horses through the  McCanns human rights... It will be interesting to see what the ECHR have to say