For Albertini ...

[stephen25000]

You have misunderstood this, we have civil law in the uk too. Famously in the US oj simpson was found not guilty under criminal law but was sued under civil law for damages which he lost. The charges against the McCanns would be criminal law. the defendant has no duty to prove innocence and in fact has a right to silence.

No I understand perfectly well.

UK law in this case is irrelevant as the crime took place in another country.

The only situation where it would become relevant, if it was proved that Madeleine died and the Mccanns new it, and the subsequent setting up of the 'fund' would be serious criminal fraud, as it was operated in this country.

[Carana]

50/50%  as stated in Court by Menezes hardly seems to mean that it is more likely that Madeleine is dead.

And, Or.  To, By.  Isn't this the crux of suspect translations? Whether accidentally or otherwise?

And for The Attorney General to make a judgement in a legal document without any evidence is at the very least fool hardy.  It would mean that he had formed an opinion which would automatically mean that he believed The McCanns to be guilty if they had ever gone to trial. This could have prejudiced the trial.  And I can't see him making a dumb mistake like that.
However, as this would have favoured The McCanns, I really don't know why I should care.

Read my post again, Eleanor.

Despite what he said in the legal summary (which weighed more towards the likelihood that she was no longer alive), by the time of the injunction trial he seems to have adopted a more neutral stance. The issue is whether she is dead or alive, he doesn't anything concerning who may have been responsible.

[Carana]

FOR REFERENCE PURPOSES....................................


In English speaking countries, we use the common  law as the basis of our legal system. In its origins, the Norman French occupied England, which was largely unsettled and not at all well policed. So it became relatively easy to have someone charged with a crime, since witnesses were rare. Juries were used to decide guilt and the facts of the case because the Normans did not speak the vernacular very well.  Over time, the burden of proof was placed upon the accuser, later the Crown. It has been that way in our system for nearly a eight hundred years.  en.wikipedia.org/wiki/Common_law

 

The origins of law in France, Italy, Spain and a few other places, they follow what is called "civil law," which also includes criminal law. The historical antecedents of that system are the Code Justinian, en.wikipedia.org/wiki/Corpus_Juris_Civilis  church law, en.wikipedia.org/wiki/Canon_law the customary law of the place, and the Code Napoleon, which was a re-codification of existing law. en.wikipedia.org/wiki/Napoleonic_code

 

Under that system, it is the duty of the state to investigate crimes and to only bring charges if there is sufficient evidence to justify them. If accused, the defendant has the duty to try to show the state where it is was wrong in its investigation.  en.wikipedia.org/wiki/Burden_of_proof

That's true of Portuguese civil and commercial law.
http://ec.europa.eu/civiljustice/evidence/evidence_por_en.htm#1.a%29

Perhaps someone could double-check on criminal law (I don't have much time just now)?

I don't see how that could be the case in criminal law as it would fly in the face of the principle of presumption of innocence.

[Eleanor]

Read my post again, Eleanor.

Despite what he said in the legal summary (which weighed more towards the likelihood that she was no longer alive), by the time of the injunction trial he seems to have adopted a more neutral stance. The issue is whether she is dead or alive, he doesn't anything concerning who may have been responsible.

I know he doesn't state who was responsible, but we all know how it has been interpreted.  "The Attorney General believes that Madeleine is dead, so don't bother looking for her."
And then he becomes neutral in a Court of Law?  Why was that I wonder?

However, this little discussion has cleared up one of my concerns.  It can no longer be claimed that The Attorney General believes that Madeleine is dead.  Unless anyone wants to discuss why he changed his mind.

[Carana]

I know he doesn't state who was responsible, but we all know how it has been interpreted.  "The Attorney General believes that Madeleine is dead, so don't bother looking for her."
And then he becomes neutral in a Court of Law?  Why was that I wonder?

However, this little discussion has cleared up one of my concerns.  It can no longer be claimed that The Attorney General believes that Madeleine is dead.  Unless anyone wants to discuss why he changed his mind.

He never did say he believed that she was dead, just that it seemed more likely (in the summary). *

And, without totally excluding the (ETA hypothetical) ** possibility, there are quite a few passages that indicate that he finds it unlikely that the parents were involved.

I found it to be a reasonably fair summary.

The only point that I would disagree about is that he seems to have assumed that Mrs Fenn did indeed hear Madeleine crying for over an hour, when in fact the matter had never been clarified.



* Actually, he phrases it slightly differently right at the end:

 "With regard to other possible crimes, whilst we cannot dismiss the possibility of a killing, given the high degree of probability, there is no evidence for this in the case records.


** And concerning the parents:

Even if, hypothetically, one could admit that Gerald and Kate McCann might be responsible over the child's death, it would still have to be explained how, where through, when, with what means, with the help of whom and where to they freed themselves of her body within the restricted time frame that would have been available to them to do so.

(snip)


The non-involvement of Madeleine's parents in any criminally significant action is apparent from the fact that they were not in the apartment at the time of her disappearance, their normal behaviour up to that moment and afterwards, as witnessed by the statements of the witnesses, the analysis of the telephone communications and the conclusions of the experts reports… None of the indications which led to their being made suspects was substantiated later; there was no proof of them having notified the media before the police, the laboratory did not confirm the traces found by the dogs, and the initial e-mail indications transcribed above later turned out to be harmless
…. Therefore having considered the foregoing, I order:
… b) Filing of the papers concerning the suspects Gerald Patrick McCann and Kate Marie Healy, as there is no evidence that they committed any crime defined by Article 277.1 of the Code of Criminal Procedure".


** ETA 2 (from further up in the summary):

To this can be added that, in reality, none of the indications that led to their constitution as arguidos was later confirmed or consolidated. If not, let us see: the information concerning a previous alert of the media before the polices was not confirmed, the traces that were marked by the dogs were not ratified in laboratory, and the initial indications from the above transcribed email, better clarified at a later date, ended up being revealed as innocuous.

[Eleanor]

I didn't say he said he believed it, only that this is how it has been interpreted by certain interested parties.
How many times have we seen the statement that, The Attorney General believes that Madeleine is dead?
I simply wished to put a stop to that.  That is all.

[Carana]

I didn't say he said he believed it, only that this is how it has been interpreted by certain interested parties.
How many times have we seen the statement that, The Attorney General believes that Madeleine is dead?
I simply wished to put a stop to that.  That is all.

I understood your underlying concern. ;)

Let's face it, if he had said that he thought it quite likely that she was still alive, certain parties would be insinuating corruption or political pressure....

[Albertini]

you have been back and posted but have not answered the questions.Lets wait and see if you can answer them

Yes, thats right becuase it will take me a while to address all the posts aimed at me.

Don't worry Davey boy, you will get your reply.

[Eleanor]

I understood your underlying concern. ;)

Let's face it, if he had said that he thought it quite likely that she was still alive, certain parties would be insinuating corruption or political pressure....

Insinuating?  Stating it as a fact, more like.  Insinuations I can cope with.  It's downright lies that get to me.

[Albertini]

If you are arrested on suspicion of having committed some crime, and you offer a rock-solid alibi, have you "demonstrated your innocence," or have the police failed to make their case against you?

If the police have reason to suspect you and your alibi was rock solid, for example it could be established you weren't in the country at the time of the crime, and that was cross verfied with other material facts, then you have demonstrated your innocence to the investigation.

Once again your confusing judicial innocence and investigative innocence.

[Albertini]

you have used the phrase "demonstrating their innocence" many times. You have stated on this thread that this means the McCanns would be cleared. you have now changed your mind . if you are going to use this phrase you should tell us what you mean by it. It seems now that you use the phrase but are unable to explain it.
once again, what do you mean by proving their innocence. could you answer the question

No love, you're just not getting it. You are getting yourself in such a froth in an attempt to try and catch me out that you are either not listening or not able to understand what has been said.

To be cleared of a crime requires a judicial setting.

To be cleared in an investigation requires demonstrating your innocence either directly or indirectly to the investigation.

Note the use of the word "cleared" in both statements but they are applying to different aspects, namely, the judicial and investigative processes.

The McCann's have had neither even though there is no evidence against them in an incomplete investigation.

It is possible to have that situation and for them to remain innocent until proven guilty but you can't see it.

[Chinagirl]

If the police have reason to suspect you and your alibi was rock solid, for example it could be established you weren't in the country at the time of the crime, and that was cross verfied with other material facts, then you have demonstrated your innocence to the investigation.

Once again your confusing judicial innocence and investigative innocence.

Not so.  No difference.  You are ALWAYS presumed innocent.

And the word you want is "you're" (contraction of "you are").  "Your" is the possessive.

[Albertini]

The only way that innocence or guilt is 100% proved is by a trial and by a jury of your peers

Correct and not in dispute.

Police or judges do not decide . Police gather evidence and present to the judicial system and then if there is enough evidence a trial takes place. Until then all suspects are presumed innocent

Correct and not in dispute.

To say that because the AG didn't actually say the word " innocent " in his statement somehow means that they are really guilty a non sense  argument - It is not the AG remit to pronounce on guilt or innocence

Not correct. You can still have not demonstrated your innocence to an investigation and be regarded as innocent under law in judicial terms.

The one does not automatically lead to the other.

You are correct on this bit:

It is not the AG remit to pronounce on guilt or innocence

And that is what i have been saying to those who say the AG report "cleared" them. Only a Judge can clear them in a judicial sense, and they have failed to be cleared of involvement in an investigative sense as the Ag report stated.

But they still remain innocent in the eyes of the law. That is something that has never beeen in doubt.

Are we really saying that any one who has ever been interviewed by police under caution - but never tried is somehow technically guilty for ever more ??  as they haven't yet proved their innocence ?

No, they aren't guilty and i've never said that. They are still innocent under law but they haven't proven their innocence to the investigation.

Two completely different concepts.

the legal system can go back years and charge any person if new evidence is found  and this applies to the McCann's as well as anyone else

but until that happens they are Innocent citizens and no amount of weasel words will make a difference

Correct to a point. The "weseal words" you mention relate to the conclusions of the AG report and their not proving their innocence.

I would argue no amount of "weasel words" will change what the AG report says about their failure to prove their innocence. It's there, it has a standing in the context of the report into the investigation and as much as supporters try to pretend it's not there, it is, twice.

[Albertini]

Not so.  No difference.  You are ALWAYS presumed innocent.

And the word you want is "you're" (contraction of "you are").  "Your" is the possessive.

Under law yes, clearly not in an investigation otherwise the AG report wouldn't have stated it, would it?

Once again you try and use a simple word document error as a point, the argument of choice for those who have lost the argument at hand.

[Carana]

I still don't understand why some of you seem to think that a reconstruction would have had any impact on the search for Madeleine.

A reconstruction wouldn't have proven innocence anyway. If whatever they wanted to be checked was feasible, it wouldn't mean that that was actually what happened, only that it was possible.

Unless it led to charging them, the case would have been archived anyway.

From what I can decipher, in Article 276 of the 2000 Penal Process Code, a criminal investigation was supposed to be wound up in 6 months starting from when the investigation was focused on a particular person or persons, or when someone was made an arguido; or in 8 months if that was not the case. (The Code has since been updated several times, but that basic timeframe is still the same.)

In that Article, there were only two lines referring to a different Article (Art. 109) on justifying why it hadn't been wound up and there was a whole procedure to justify getting an extension. There was also a provision with specific deadlines if someone was in pre-trial detention, which is irrelevant in this case. (Interestingly, the latest Code (2010) has a sub-section in the event of letters of request, which effectively freezes the timeframe until the results are received, with a cap of 50% of the initial timeframe.)

Murat was made arguido on 15 May 2007. In theory, by 14 November 2007, he would have had to have been charged or the case would have been archived then.

Then they decide to make the McCanns arguidos on 7 September 2007, so Murat had to tag along until 6 March 2008. Same thing, one, two or all three would have had to have been charged or the case archived.

It was then extended to get all the rogs sorted out. Most of that was in by May, bar one outstanding one. On 16 June, Frances Kenagh asked again for justification for requesting 6 months's worth of Gerry's credit card use (following her initial request for clarification in March to which there had apparently been no reply). That was finally dropped.

The PJ finished its report on 20 June. And the case was archived on 21 July.

If the T9 had done the reconstruction and the PJ had deemed their version feasible, they wouldn't - as people seem to think - start looking for an abductor with no concrete new leads to go on. It was already a very long process by Portuguese standards.

Some people also seem to think that if they had subsequently requested to go back to do one, it would somehow reopen the investigation. On what basis? The process was already archived without it. So what new, significant, credible, and relevant evidence would it have provided to take the case forward towards finding Madeleine?

2000 Penal Process Code http://paulosantos-adv.planetaclix.pt/CPP.htm
I can't provide a link to the 2007 version (which entered into force on 15 September) as I can't find a link that works any more. I have a copy, though.
If anyone is interested, the 2010 one is here: http://www.legix.pt/docs/CPP-30_Ago_2010.pdf

A follow up to my earlier post.

When I was checking through the successive Penal Process Codes, I noticed that one of the key changes was the amount of time one could spend in pre-trial detention. It's irrelevant in this case, but I still found the 2000 Code jaw-dropping.

An interesting paper here by the Lisbon Network of Judicial Professions (Council of Europe) on:

THEMIS 2008

ECHR CATEGORY

THE RIGHT TO A FAIR TRIAL
ANALYSIS OF THE CONDEMNATIONS OF THE PORTUGUESE STATE DUE TO THE VIOLATION OF ARTICLE 6 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
http://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/ECHR/Paper4_en.asp


They've clearly been under pressure to speed up the judicial process and the changes seem to be going in the right direction - at least for those stuck in prison awaiting trial.

And another paper on the right to a fair trial:

http://www.fairtrials.net/wp-content/uploads/2012/10/Portugal-Source-Document.pdf


What I still find extraordinary is that unless there had been sufficient evidence to bring charges against Murat and if they hadn't decided to make the McCanns arguidos, the case would have been shelved in November 2007 - just 6 months later.