McCanns appeal to the European Court of Human Rights

[Robittybob1]

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.

It was the original statement "Any trial would have taken years" that I had issues with.   To me that was an opinion not a fact.

[G-Unit]

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.

The Article used in the archiving dispatch , it seems, had no influence on the judge's ruling anyway. They discussed it only because the lawyers were using it to try to bring the presumption of innocence into the damages trial;

whatever the grounds for the closure of the investigation ......we would always consider that the public criticism and the public scrutiny of the functioning of justice were not impeded.

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

I can't speculate as to what the 'new evidence' was because I've got no idea.

[Mr Gray]

The Article used in the archiving dispatch , it seems, had no influence on the judge's ruling anyway. They discussed it only because the lawyers were using it to try to bring the presumption of innocence into the damages trial;

whatever the grounds for the closure of the investigation ......we would always consider that the public criticism and the public scrutiny of the functioning of justice were not impeded.

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

I can't speculate as to what the 'new evidence' was because I've got no idea.

so they felt the fact that th Mccanns had the right to be presumed innocent was not important?....very strange

[Robittybob1]

so they felt the fact that th Mccanns had the right to be presumed innocent was not important?....very strange

Is that your deduction or are you trying to ask a question?

[G-Unit]

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.

The McCanns certainly wanted a review of the Portuguese evidence, but I have seen nothing to suggest that they wanted the Portuguese to do it.

Why did the PJ speak to the McCanns after speaking to Rowley et al?

in meeting with Gerry and Kate McCann, and the lawyers of the couple, the PJ asked for "absolute silence" about the investigation.
http://www.gerrymccannsblogs.co.uk/Nigel/id466.htm

Why would the PJ tell them informally or formally that the PJ had discarded their involvement? The archiving dispatch had, allegedly, already done that by using 277/1.

[G-Unit]

so they felt the fact that th Mccanns had the right to be presumed innocent was not important?....very strange

Not relevant to their judgement, not unimportant.

[Carana]

The Article used in the archiving dispatch , it seems, had no influence on the judge's ruling anyway. They discussed it only because the lawyers were using it to try to bring the presumption of innocence into the damages trial;

whatever the grounds for the closure of the investigation ......we would always consider that the public criticism and the public scrutiny of the functioning of justice were not impeded.

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

I can't speculate as to what the 'new evidence' was because I've got no idea.

Ok.

But I'm still perplexed at their assertion that it couldn't have been opened under the 277/1 decision, when it certainly seems that it was. Did they check? Did the AG get it wrong?

If it was indeed reopened under 277/1 - "no evidence" / equivalent of a dismissal for lack of grounds, then why wouldn't that affect the superiority of Amaral's rights of theirs?

I'm aware that "presumption of innocence" is usually associated with rights to a fair trial, which was no longer the case when his book hit the shelves of booksellers nationwide, preceded by the usual marketing promo, as it had been archived just 3 days previously.

However, a few days ago, I noticed this from the ECHR library and posted a link to it, but I doubt anyone noticed it.

Section starting on p. 80 of the pdf (p. 78 of the doc).

Article 6 §2: presumption of innocence
https://www.echr.coe.int/LibraryDocs/Vitkauskas2012_EN.pdf

I don't know quite know whether this case would fit into this wider spectrum of cases considered or not. Even if it doesn't, it might have justified an application, IMO.

[G-Unit]

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.

277/1 doesn't require 'no evidence' it requires 'sufficient evidence'. In my opinion saying there's no evidence that the arguido committed a crime is not the same as saying there's sufficient evidence to show that the arguido committed no crime.

[Mr Gray]

Ok.

But I'm still perplexed at their assertion that it couldn't have been opened under the 277/1 decision, when it certainly seems that it was. Did they check? Did the AG get it wrong?

If it was indeed reopened under 277/1 - "no evidence" / equivalent of a dismissal for lack of grounds, then why wouldn't that affect the superiority of Amaral's rights of theirs?

I'm aware that "presumption of innocence" is usually associated with rights to a fair trial, which was no longer the case when his book hit the shelves of booksellers nationwide, preceded by the usual marketing promo, as it had been archived just 3 days previously.

However, a few days ago, I noticed this from the ECHR library and posted a link to it, but I doubt anyone noticed it.

Section starting on p. 80 of the pdf (p. 78 of the doc).

Article 6 §2: presumption of innocence
https://www.echr.coe.int/LibraryDocs/Vitkauskas2012_EN.pdf

I don't know quite know whether this case would fit into this wider spectrum of cases considered or not. Even if it doesn't, it might have justified an application, IMO.

from Caranas link....


rticle 6 §2: presumption of innocence
This provision primarily disallows premature declarations of
guilt by any public official. Declarations of guilt may take the
form of: a statement to the press about a pending criminal
investigation (Allenet de Ribemont v. France, §§39-41); a procedural
decision within criminal or even non-criminal proceedings
(mutatis mutandis, Daktaras v. Lithuania, §§42-45); or
even of a particular security arrangement during the trial
(Samoilă and Cionca v. Romania, §§93-101, where the applicant
was shown to the public in prison garments during the bail
proceedings).
A “public official” need not be an already elected representative
or employee of the public authorities at the material time. The
notion may include persons of recognised public standing,
from having held a public position of importance in the past or
from running for elected office (Kouzmin v. Russia, §§59-69).

[Carana]

It was the original statement "Any trial would have taken years" that I had issues with.   To me that was an opinion not a fact.

Can you think of any case in any civilised country that goes from being a suspect, to being arrested and charged, then preliminary court hearings, plus adequate legal preparation time, setting dates for and holding of an a quo trial, the lodging of an appeal, time to accept or reject and appeal, dates for an appeal hearing, time for a ruling, a counter-appeal to a supreme court, time for their acceptance or rejection, if accepted, the setting of dates, their final chinwag and ruling that would take less than years? lol

[Mr Gray]

277/1 doesn't require 'no evidence' it requires 'sufficient evidence'. In my opinion saying there's no evidence that the arguido committed a crime is not the same as saying there's sufficient evidence to show that the arguido committed no crime.

That gets us back to the absence of evidence argument..and imo I supplied evidence to support it...absence of evidence is evidence of innocence

[Mr Gray]

Not relevant to their judgement, not unimportant.

unimportant to therir judgement which means they have ignored the presumption of innocence

[Carana]

277/1 doesn't require 'no evidence' it requires 'sufficient evidence'. In my opinion saying there's no evidence that the arguido committed a crime is not the same as saying there's sufficient evidence to show that the arguido committed no crime.

Ok with that, it was just shorthand.

So, where I'd said (no evidence), it was shorthand for sufficient evidence that the arguido had committed no crime.

[Carana]

from Caranas link....


rticle 6 §2: presumption of innocence
This provision primarily disallows premature declarations of
guilt by any public official. Declarations of guilt may take the
form of: a statement to the press about a pending criminal
investigation (Allenet de Ribemont v. France, §§39-41); a procedural
decision within criminal or even non-criminal proceedings
(mutatis mutandis, Daktaras v. Lithuania, §§42-45); or
even of a particular security arrangement during the trial
(Samoilă and Cionca v. Romania, §§93-101, where the applicant
was shown to the public in prison garments during the bail
proceedings).
A “public official” need not be an already elected representative
or employee of the public authorities at the material time. The
notion may include persons of recognised public standing,
from having held a public position of importance in the past or
from running for elected office (Kouzmin v. Russia, §§59-69).

It's complicated though.
There wasn't a pending criminal investigation at the time: it had just been archived.

[Mr Gray]

It's complicated though.
There wasn't a pending criminal investigation at the time: it had just been archived.

It is complicated...but if what amaral was saying was true...then there would be a pending criminal investigation...and if it wasnt true....then its defamation