Application to have Judgement Invalidated (Arguição de Nulidade do Acórdão)
Below is a copy of the McCann's request for annulment of the Supreme Court´s decision, filed by the couple´s lawyer on the 16th of February, 2017. We understand that the filing of this appeal has a suspensive effect on the Supreme Court´s ruling.
The request alleges that the Supreme Court´s decision "lacks a foundation (...) in stating that one cannot invoke the principle of presumption of innocence in order to restrict the right to freedom of expression, because it is based on the erroneous presumption that the archiving of the criminal investigation 'was determined because it was not possible for the Public Ministry to obtain enough indications of the practice of crimes by the appellants'".
In case you are struggling with the legalese (we do), here is what we understand to be the reasoning behind the request:
1. The McCanns have invoked the principle of presumption of innocence to justify the restrictions they want imposed on Dr. Amaral's freedom of expression;
2. The Supreme Court stated, in its ruling, that the above is no argument because the McCanns were not considered innocent by the investigation and the case was archived because not enough evidence was found to charge them.
3. The McCanns, because they believe the above argument is false, request for the Supreme Court's decision to be nullified/invalidated.
Translation and Notes courtesy Anne Guedes.
Page 01
February 16, 2017
SUPREME COURT OF JUSTICE
Section 1
Case No. 1.454 / 09.5TVLSB.L1.S1
Your Excellency Doctor Judge Counselor Rapporteur,
KATE MARIE HEALY MCCANN and GERALD PATRICK MCCANN, appellants identified in the case minutes, having been notified of the entire content of the STJ 1st Section's ruling, which redounded on the matter of the appeal for review, come, under the terms and for the purposes of the provisions of articles 615-1(b, c) and 4-1 and 666 of the Code of Civil Procedure, to argue for the assembly the
NULLITY OF THE RULING
What they do, on the following grounds:
The factual assumptions - which are supposed to be valid - of the logical argumentation set out in the ruling now object of complaint contradict and constitute a sense of reason opposite to that which is inferred from the factual ground of the decision,
Note-1:
Article 615 – Causes of Nullity of the Sentence
1 – The sentence is null when :
b) It does not specify the factual and legal grounds that justify the decision.
c) The grounds are in opposition to the decision or there is some ambiguity or obscurity that turns the decision unintelligible.
4 - The nullities mentioned in points b) to e) of paragraph 1 can only be argued before the court that delivered the sentence if this one does not admit ordinary appeal, and if it does the appeal can be based on any of these nullities.
Article 666 - Vices and Reform of the Ruling
1 - The provisions of articles 613 to 617 are applicable to the 2nd instance, but the ruling is still null and void when it is drawn against the unsuccessful party or without the necessary salary.
2 - The rectification or amendment of the judgment, as well as the plea of nullity, shall be decided in a conference.
Page 02
And this in particular as regards the conclusive epitome on the protection of the rights of the appellants to their good name and reputation, and their intimate relationship with the presumption of innocence or, if we wish to be more rigorous, the status of innocence that they enjoy.
Now,
It is established in the minutes, under point 15 of the factual matter, that, in particular :
(...)
“It appears that the non involvement of the arguidos, the parents of Madeleine McCann, stems from the objective circumstances of them not being inside the apartment when Madeleine disappeared, from the normal behaviour that they displayed until said disappearance and afterwards, as can be amply concluded from witness statements, from the telephone communications analysis and also from the forensics' conclusions, namely the reports from the (Birmingham) Forensic Science Service (FSS) and from the National Institute for Legal Medicine.
To this should be added that in fact none of the clues that led to their constitution as “arguidos" was later confirmed or consolidated.
Page 03
Let's judge it : the information concerning a previous alert of the media before the police was not confirmed, the residues that were marked by the dogs were not corroborated in laboratory, and the initial indications from the above transcribed email (1) better examined afterwards, that ended up appearing to be inconclusive.
(...)
Tests and analyses were performed in two of the most prestigious and credentialed institutions - the National Institute for Legal Medicine and the British Forensic Science Service -, their final results having neither positively evaluated the collected residues nor corroborated the dogs' alerts.
(...) (2)
it was not possible to obtain any evidence that would allow for a average man, enlightened by criteria of logics, of norms and of the general rules of experience,
Note-2: The email on the preliminary DNA analysis by the FSS of the samples collected in the car hired by the Mcs.
Note-3 : (...) is substituted to "In spite of all this" in the original document (the filing order)
Page 04
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 or opportunistic abduction), nor even to produce a consistent prognosis about her destiny and inclusively – and that's the most dramatic - to establish whether she is still alive or, as it seems the more likely, she is dead.
(...)
Therefore, everything having been examined, analysed and duly pondered, considering what is left exposed, we determine
(...)
the archiving of the autos concerning the (by lawyer) assisted witnesses Gerald Patrick McCann and Kate Marie Healy, due to the lack of clues of their practising any crime” (cf. Also, alinea AQ) of the established facts in the normalizing dispatch of the process).
The documentary proof that supported the determination of this fact as proved, even in the condensation phase of the proceedings, is, as a result, the order to file the aforementioned criminal investigation, together with the minutes on paper or in digital form.
Page 05
In the operative part of this order, one can read, immediately after the sentence "because there is no evidence that they have committed any crime", the express mention of article 277-1 of the CPP, through the concrete expression "in accordance with the provisions of Article 277-1 of the CPP".
In the light of this, it seems to the appellants that this STJ's Section can not lightly come to say in the ruling now matter of complaint, necessarily without falling (3) into a conspicuous contradiction of grounds, that the archival in question "was determined since it had not been possible for the Public Ministry to obtain sufficient evidence of the commission of crimes by the appellants (cf. Quoted article 277-2)".
Just as (this STJ's Section) could not assert that it is not acceptable to assimilate the aforementioned filing order to a verified proof of innocence, precisely because the order to which that court refers,
Note-4
Article 277 - Archiving of the investigation
1 - The Public Ministry shall, by dispatch, close the investigation, as soon as it has gathered sufficient evidence that the crime was not confirmed, that the arguido did not practice it in any way or that the procedure is legally inadmissible
Note-5
this is a literal translation, but the appropriate syntax for what is meant is "sem necessariamente cair...", i.e without falling necessarily...
Note-6
Article 277 - Archiving of the investigation
2. The investigation shall also be closed if it had not been possible for the Public Ministry to obtain sufficient evidence confirming the crime or who were the authors.
Page 06
as a presupposition of the conclusion it reached, does not unexist (4) uttered under article 277-2 of the CPP.
As far as the appellants are aware of, the archiving at stake was carried out, in the course of the investigation, because sufficient proof had been gathered that the then arguidos did not commit any facts of a criminal relevance and in any way whatsoever, this conclusion substantiating an archiving for factual reasons,
A point that should have always meant inside the decision taken by this STJ
that, in this investigation, exists the necessary certainty that the persons then arguidos did not participate objectively, subjectively and individually in its (5) practice, whether as perpetrators or only as accomplices.
On the other hand,
Note-7
read “exists”. La Bruyère wrote that "Whatever we conceive well we express clearly, and words flow with ease”. It seems that here things aren’t as well conceived as they should to be understandable. Double negations are traps even for grammarians. As well read "could not assert that it is not acceptable” as “could not assert that it is unthinkable”
Note-8 this possessive adjective lacks syntaxic representation. One can guess that it refers to the undetermined crime MMC was victim of.
Page 07
Furthermore the appellants find that the conclusion reached in the ruling under complaint is lacking factual ground concerning the fact that the alluded filing decision is liable to be amended by various means, which is done with a view to removing from the minutes the application of the presumption of innocence principle.
However, the archiving decision, which is proven in the minutes, produces important preclusive legal effects, which are protected by the procedural law, having the force of res judicata, as, moreover, is foreseen in the schemes established by articles 279-1, 282-3 and 449-2 of the CPP.
That is to say, therefore, that the filing order uttered according to article 277-1 of the CPP, after the deadline of article 278 of the same legal compendium, is res judicata (6) and is only subject to review according to the terms of articles 279 and 449-2 of the CPP.
That is to say, the invalidation of the grounds invoked by the Public Ministry's office in the filing order, made under the provisions of article 277-1 of the CPP, can only be based on new facts or elements of evidence unknown by the Public Ministry at the investigation’s time and that, therefore,
Note-9
Article 279 - Reopening of the investigation
1. Once the period referred to in the previous article has expired, the investigation may be reopened only if new evidence appears to invalidate the grounds invoked by the Public Ministry in the filing order.
Article 282 - Duration and effects of suspension
3 - If the arguido complies with the injunctions and rules of behaviour, the Public Ministry closes the processes that cannot be reopened.
Article 449 - Reasons and admissibility of the review
2 - For the purpose of the provisions of the preceding paragraph, the dispatch terminating the process shall be equated with the sentence (made res judicata).
Note-10
Article 278 - Hierarchical intervention
1 - Within a period of 20 days from the date on which the opening of the investigation can no longer be requested, the immediate superior of the Public Ministry magistrate may, on his own initiative or at the request of the assistant or of the complainant capable of being constituted assistant, determine that an indictment is made or that the investigations continue, indicating, in this case, the steps to be taken and the deadline for compliance.
2 - The assistant and the complainant able to become an assistant may, if they choose not to request the opening of the instruction, raise the hierarchical intervention, under the previous number, within the period provided for that request.
Note-11
Read “only new pertinent elements will be able to cast doubt upon the grounds invoked by the PM".
Page 08
could not be presented and produced in order to be assessed and pondered in the decision.
However, inside the factual matter established as proved in the minutes, there is no fact capable of constituting ground for the review or reopening of the investigation in question, there is thus no basis for the finding advanced by the court to the effect that the principle of innocence isn’t able to be alluded to in the minutes to restrict the right to freedom of expression, because of the, erroneous, starting assumption that the archiving of the criminal investigation "was determined by the fact that the PM had not been able to obtain sufficient evidence of the commission of crimes by the appellants". (7)
Therefore,
we request that Your Excellencies deign : (8)
a) to hear the present nullity imputation,
b) to remedy the flaws of inconsistency between the factual basis and the conclusions reached in the ruling and the flaws of failure of ground, as stated above,
Note-12
The complexity of the filing order, erroneously known as the “AG Report”, is likely related to the difficult task the Public Ministry was facing. And one has to admit that the dispatch is not written as the judges of the STJ remarkably write their rulings. Mr Murat’s arguido status, twice extended, required to put an end to the criminal investigation (the status of arguidos can’t be removed before the end of that investigation phase).
Furthermore the acquaintances of the MCs rejected the request of the Prosecutor to go back to PDL in order to be part in a reconstitution of the 3rd of May events, though the Prosecutor clearly warned that it was the last chance for boosting the rather stagnant criminal investigation. These are the significant circumstances involving the writing of the filing order. One has to acknowledge an important point however : the Prosecutors foresaw that their constrained decision, as it couldn’t exonerate the MCs, the crime being undetermined, would reflect the “major damage done to the MCs” by the refusal of the group to collaborate with the PJ.
Note-13 Note that the complaint starts addressing to Your Excellency (singular)
Page 09
All with legal consequences.
Attached is a document proving that justice fees were paid. (9)
Notification concerning this complaint was sent to the opposite parties by email on 16.02.2017
Note-14: This document was published on PJGA on March 18, but Gonçalo Amaral legal team is supposed to have been emailed it on February 16. The referred receipt of justice fees isn’t appended.
