McCanns appeal to the European Court of Human Rights

[G-Unit]

The AG decided that the case was to be filed under 277/1 - the crime has not been verified or the defendant has not committed the crime under investigation.

The SC decided, in their not-so-infinite wisdom, that what had actually been shown in the volumes of files which they hadn't read, was that the public prosecution hadn't collected sufficient signs of the verification of the crime or of its agents - thus altering the context of the application of law in a legal document.
http://www.mccannpjfiles.co.uk/PJ/LEGAL_SUMMARY.htm
*snipped

The archiving reported is worded as follows:-
- Despite all of this, it was not possible to obtain any piece of evidence that would allow for a medium man, under the light of the criteria of logics, of normality and of the general rules of experience, to formulate any lucid, sensate, serious and honest conclusion about the circumstances under which the child was removed from the apartment (whether dead or alive, whether killed in a neglectful homicide or an intended homicide, whether the victim of a targeted abduction or an opportunistic abduction), nor even to produce a consistent prognosis about her destiny and inclusively - the most dramatic - to establish whether she is still alive or if she is dead, as seems more likely.

But therefore we do not possess any minimally solid and rigorous foundation in order to be able to state, with the safety that is requested, which was or were the exact and precise crime(s) that was or were practised on the person of the minor Madeleine McCann - apart from the supposed but dismissed crime of exposure or abandonment - or to hold anyone responsible over its authorship.

None of that demonstrates that the judges changed any opinion.

Duarte claimed that the archiving dispatch exonerated the McCanns (and Murat) because it was filed under 277/1.

The judges pointed out that the important part of the archiving dispatch was it's contents. The contents were consistent with filing it  under 277/2. The fact that the prosecutors and the AG announced that the investigation could be reopened further confirms this.

It's a bit like describing a zebra in an essay; horse-like, black and white stripes, etc., then saying in the final paragraph that it's a lion. The final paragraph is wrong.

[slartibartfast]

None of that demonstrates that the judges changed any opinion.

Duarte claimed that the archiving dispatch exonerated the McCanns (and Murat) because it was filed under 277/1.

The judges pointed out that the important part of the archiving dispatch was it's contents. The contents were consistent with filing it  under 277/2. The fact that the prosecutors and the AG announced that the investigation could be reopened further confirms this.

It's a bit like describing a zebra in an essay; horse-like, black and white stripes, etc., then saying in the final paragraph that it's a lion. The final paragraph is wrong.

The whole appeal to the SC appears to have been like asking for a pass mark exam to be remarked to get a better score and ending up with a fail.

[Alice Purjorick]

The first phase of procedure in Portugal is the inquiry. The norm is that the PP has 8 months for this. The McCann case was 15 months quite why that should have been is not apparent but is covered by Article 276 of the CPP.
At the end of the allocated period the PP must either charge someone under the provisions of Art 276 or file/close/archive the inquiry under the provisions of Art 277 of the CPP. Article 277 has two subsections 277/1 and 277/2.
There are three reasons for filing under 277/1 and one reason under 277/2.
277/1 reasons for filing:
1.   The crime has not been verified.
2.   The procedure is legally inadmissible.
3.   The defendant has not committed the crime under investigation.
277/2 reason for filing:
1.   The PP was unable to collect sufficient signs of the verification of the crime or its agents.
That all seems straightforward to me, including in the light of events, but I’ll leave posters to weave of it what they wish and bung this in just to keep the pot boiling, to mis metaphors  :
http://www.ecba.org/extdocserv/projects/JusticeForum/Portugal180309.pdf

[Angelo222]

The whole appeal to the SC appears to have been like asking for a pass mark exam to be remarked to get a better score and ending up with a fail.

Sounds as bit like the Remoaners and their call for another referendum.   

If you don't like the result have another one!!

[misty]

None of that demonstrates that the judges changed any opinion.

Duarte claimed that the archiving dispatch exonerated the McCanns (and Murat) because it was filed under 277/1.

The judges pointed out that the important part of the archiving dispatch was it's contents. The contents were consistent with filing it  under 277/2. The fact that the prosecutors and the AG announced that the investigation could be reopened further confirms this.

It's a bit like describing a zebra in an essay; horse-like, black and white stripes, etc., then saying in the final paragraph that it's a lion. The final paragraph is wrong.

The SC have changed the context of part of a legal document used to make a judgement in court based on the facts contained in said document. That is unlawful. Elements of the proven facts could not be challenged e.g the dogs alerted to cadaver, during the trial. The crime was neither specified nor verified so the McCanns should not have been discriminated against by virtue of being named arguidos rather than merely being witnesses alonside many others who had been questioned. 277/1 was correct IMO.

[stephen25000]

The SC have changed the context of part of a legal document used to make a judgement in court based on the facts contained in said document. That is unlawful. Elements of the proven facts could not be challenged e.g the dogs alerted to cadaver, during the trial. The crime was neither specified nor verified so the McCanns should not have been discriminated against by virtue of being named arguidos rather than merely being witnesses alonside many others who had been questioned. 277/1 was correct IMO.

The McCann's weren't on trial, were they.

[Angelo222]

The SC have changed the context of part of a legal document used to make a judgement in court based on the facts contained in said document. That is unlawful. Elements of the proven facts could not be challenged e.g the dogs alerted to cadaver, during the trial. The crime was neither specified nor verified so the McCanns should not have been discriminated against by virtue of being named arguidos rather than merely being witnesses alonside many others who had been questioned. 277/1 was correct IMO.

They were suspects in their child's disappearance.  Arguido status is a protection under Portuguese law, so many still fail to understand this.

[Alice Purjorick]

The SC have changed the context of part of a legal document used to make a judgement in court based on the facts contained in said document. That is unlawful. Elements of the proven facts could not be challenged e.g the dogs alerted to cadaver, during the trial. The crime was neither specified nor verified so the McCanns should not have been discriminated against by virtue of being named arguidos rather than merely being witnesses alonside many others who had been questioned. 277/1 was correct IMO.

On what basis?
The archiving despatch was at pains to point out that neither the nature of the crime nor its perpetrators could be determined.
That comes under 277/2.
The full wording under 277/1 is : "The PP shall file the inquiry as soon as it has gathered evidence enough that the alleged crime was not committed at all".

[G-Unit]

The SC have changed the context of part of a legal document used to make a judgement in court based on the facts contained in said document. That is unlawful. Elements of the proven facts could not be challenged e.g the dogs alerted to cadaver, during the trial. The crime was neither specified nor verified so the McCanns should not have been discriminated against by virtue of being named arguidos rather than merely being witnesses alonside many others who had been questioned. 277/1 was correct IMO.

You are entitled to express your opinion, but when it comes to matters of Portuguese law I think Portugal's Supreme Court judges are more likely to have formed the correct opinion than you are. 

[Angelo222]

The McCanns behaviour has raised many an eyebrow.  Your three-year-old kid disappears and instead of getting involved in the search and investigation they go out jogging in full view of the press.  I don't know about anyone else but to me that smacks of extreme callousness.

The European Court is only interested in human rights.  What about Maddie's human rights?  Wasn't she entitled to a reasonable level of care from her parents?

[stephen25000]

The McCanns behaviour has raised many an eyebrow.  Your three-year-old kid disappears and instead of getting involved in the search and investigation they go out jogging in full view of the press.  I don't know about anyone else but to me that smacks of extreme callousness.

The European Court is only interested in human rights.  What about Maddie's human rights?  Wasn't she entitled to a reasonable level of care from her parents?

It seems socializing came first before childcare, for all the group.

[misty]

On what basis?
The archiving despatch was at pains to point out that neither the nature of the crime nor its perpetrators could be determined.
That comes under 277/2.
The full wording under 277/1 is : "The PP shall file the inquiry as soon as it has gathered evidence enough that the alleged crime was not committed at all".

You're wrong. Alice. Use the source, not a book.
https://translate.google.co.uk/translate?hl=en&sl=pt&u=http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php%3Fartigo_id%3D199A0277%26nid%3D199%26tabela%3Dleis%26pagina%3D1%26ficha%3D1%26nversao%3D&prev=search

Article 277
Archiving of the survey
1 - The Prosecutor's Office shall, by order, close the investigation, as soon as it has gathered sufficient evidence that it has not verified a crime, that the accused has not practiced it in any way or that the procedure is legally inadmissible.
2. The investigation shall also be closed if it has not been possible for the Public Prosecution Service to obtain sufficient evidence of the crime or of who the agents were.
3 - The order of filing shall be communicated to the accused, to the assistant, to the complainant with the right to become an assistant and to whom he / she has indicated the purpose of deducing civil claim under article 75, as well as to the respective defender or lawyer .
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The disappearance of a child is not a crime in itself. The nature of any crime had not been verified at the time of the archiving.

[G-Unit]

You're wrong. Alice. Use the source, not a book.
https://translate.google.co.uk/translate?hl=en&sl=pt&u=http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php%3Fartigo_id%3D199A0277%26nid%3D199%26tabela%3Dleis%26pagina%3D1%26ficha%3D1%26nversao%3D&prev=search

Article 277
Archiving of the survey
1 - The Prosecutor's Office shall, by order, close the investigation, as soon as it has gathered sufficient evidence that it has not verified a crime, that the accused has not practiced it in any way or that the procedure is legally inadmissible.
2. The investigation shall also be closed if it has not been possible for the Public Prosecution Service to obtain sufficient evidence of the crime or of who the agents were.
3 - The order of filing shall be communicated to the accused, to the assistant, to the complainant with the right to become an assistant and to whom he / she has indicated the purpose of deducing civil claim under article 75, as well as to the respective defender or lawyer .
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The disappearance of a child is not a crime in itself. The nature of any crime had not been verified at the time of the archiving.

I think 'verifying a crime' in 277/1 refers to the prosecutors not being able to verify that there was a crime.
The report suggests that the prosecutors thought there was a crime, but didn't have enough evidence to say what it was; 277/2

[Alice Purjorick]

You're wrong. Alice. Use the source, not a book.
https://translate.google.co.uk/translate?hl=en&sl=pt&u=http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php%3Fartigo_id%3D199A0277%26nid%3D199%26tabela%3Dleis%26pagina%3D1%26ficha%3D1%26nversao%3D&prev=search

Article 277
Archiving of the survey
1 - The Prosecutor's Office shall, by order, close the investigation, as soon as it has gathered sufficient evidence that it has not verified a crime, that the accused has not practiced it in any way or that the procedure is legally inadmissible.
2. The investigation shall also be closed if it has not been possible for the Public Prosecution Service to obtain sufficient evidence of the crime or of who the agents were.
3 - The order of filing shall be communicated to the accused, to the assistant, to the complainant with the right to become an assistant and to whom he / she has indicated the purpose of deducing civil claim under article 75, as well as to the respective defender or lawyer .
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The disappearance of a child is not a crime in itself. The nature of any crime had not been verified at the time of the archiving.

Where does the emboldened bit differ significantly from what I posted ?

[Alice Purjorick]

I think 'verifying a crime' in 277/1 refers to the prosecutors not being able to verify that there was a crime.
The report suggests that the prosecutors thought there was a crime, but didn't have enough evidence to say what it was; 277/2

Well whatever the SC ruling stands and cannot be overturned.