Author Topic: Reopening the case following the Archive Report.  (Read 5364 times)

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Offline Carana

Re: Reopening the case following the Archive Report.
« Reply #30 on: January 30, 2016, 05:44:01 PM »
Amaral was all in favour of the process being reopened. Now it has been.

What's the problem?

Offline Alice Purjorick

Re: Reopening the case following the Archive Report.
« Reply #31 on: January 30, 2016, 06:42:41 PM »
Amaral was all in favour of the process being reopened. Now it has been.

What's the problem?

There is no problem. Both sides should be positively ecstatic that the case has been reopened and is being investigated by two police forces. That's what they wanted that's what they have. Watch this space.
"Navigating the difference between weird but normal grief and truly suspicious behaviour is the key for any detective worth his salt.". ….Sarah Bailey

Alfred R Jones

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Re: Reopening the case following the Archive Report.
« Reply #32 on: January 30, 2016, 06:49:51 PM »
There is no problem. Both sides should be positively ecstatic that the case has been reopened and is being investigated by two police forces. That's what they wanted that's what they have. Watch this space.
Members of one side seem very sour about the cost of the investigation and seem to want it to be wound up asap...

Offline Alice Purjorick

Re: Reopening the case following the Archive Report.
« Reply #33 on: January 30, 2016, 06:55:17 PM »
Members of one side seem very sour about the cost of the investigation and seem to want it to be wound up asap...

I am sure it will be.
But the winding up will be at the initiation of the old bill imo.
"Navigating the difference between weird but normal grief and truly suspicious behaviour is the key for any detective worth his salt.". ….Sarah Bailey

ferryman

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Re: Reopening the case following the Archive Report.
« Reply #34 on: January 30, 2016, 07:16:50 PM »
Members of one side seem very sour about the cost of the investigation and seem to want it to be wound up asap...

I doubt they care very much about the cost of the operation (at least most of them)

They just want to maximise pain and misery inflicted on Kate and Gerry.

That is because they hate them ....

Offline Brietta

Re: Reopening the case following the Archive Report.
« Reply #35 on: January 30, 2016, 08:44:52 PM »
Sufficed to do what?

Keeping the investigation open would have required providing new evidence that hadn't been taken into account in the archival ruling.

Where do you start? And how are you supposed to provide that new evidence that would have overturned the ruling?

Is a twenty day time limit sufficient to have the DVDs of the files translated and then studied?  I think not, judging by the amount of time it took for Scotland Yard to do so.
"All I'm going to say is that we've conducted a very serious investigation and there's no indication that Madeleine McCann's parents are connected to her disappearance. On the other hand, we have a lot of evidence pointing out that Christian killed her," Wolter told the "Friday at 9"....

Offline G-Unit

Re: Reopening the case following the Archive Report.
« Reply #36 on: January 30, 2016, 09:55:48 PM »
Is a twenty day time limit sufficient to have the DVDs of the files translated and then studied?  I think not, judging by the amount of time it took for Scotland Yard to do so.

As I understood it there was no need for new evidence within the 20 day time limit, just a request for the 'instruction' stage to be begun.
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Offline Mr Gray

Re: Reopening the case following the Archive Report.
« Reply #37 on: January 30, 2016, 10:04:27 PM »
As I understood it there was no need for new evidence within the 20 day time limit, just a request for the 'instruction' stage to be begun.

And what are you basing your understanding on
I presume it is not your extensive knowledge of Portuguese law

Offline G-Unit

Re: Reopening the case following the Archive Report.
« Reply #38 on: January 30, 2016, 10:16:18 PM »
And what are you basing your understanding on
I presume it is not your extensive knowledge of Portuguese law

I'm sure you can look at the relevant legislation and disprove what I'm saying. Please feel free.
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Offline Carana

Re: Reopening the case following the Archive Report.
« Reply #39 on: January 30, 2016, 10:28:57 PM »
As I understood it there was no need for new evidence within the 20 day time limit, just a request for the 'instruction' stage to be begun.

The instruction phase being?

Offline Carana

Re: Reopening the case following the Archive Report.
« Reply #40 on: January 30, 2016, 10:38:56 PM »

Nevertheless, anyone who feels unsatisfied about the epilogue of the investigations, will have the possibility to react against it, having the possibility of eventually changing that epilogue, by prompting diligences based on new evidence, as long as that person has the legitimacy to request them and the requested diligences are serious, pertinent and consequent. They may do so in three ways: by requesting the reopening of the inquiry, under article 279, number 1 of the Penal Process Code; by appealing hierarchically against this dispatch under number 2 of article 278, or in another case, under number 2 of article 279 of the Penal Process Code, or by requesting the opening of the instruction under article 287, number 1, item b, of the Penal Process Code.

Offline mercury

Re: Reopening the case following the Archive Report.
« Reply #41 on: January 30, 2016, 11:40:33 PM »
Nevertheless, anyone who feels unsatisfied about the epilogue of the investigations, will have the possibility to react against it, having the possibility of eventually changing that epilogue, by prompting diligences based on new evidence, as long as that person has the legitimacy to request them and the requested diligences are serious, pertinent and consequent. They may do so in three ways: by requesting the reopening of the inquiry, under article 279, number 1 of the Penal Process Code; by appealing hierarchically against this dispatch under number 2 of article 278, or in another case, under number 2 of article 279 of the Penal Process Code, or by requesting the opening of the instruction under article 287, number 1, item b, of the Penal Process Code.

They had a Portuguese lawyer or two did they not?

Offline Carana

Re: Reopening the case following the Archive Report.
« Reply #42 on: January 30, 2016, 11:44:19 PM »
Here are the two articles in question from the 2007 Penal Process Code:


Artigo 278.o
Intervenção hierárquica
1 — No prazo de 20 dias a contar da data em que a abertura de instrução já não puder ser requerida, o imediato superior hierárquico do magistrado do Ministério Público pode, por sua iniciativa ou a requerimento do assistente ou do denunciante com a faculdade de se constituir assistente, determinar que seja formulada acusação ou que as investigações prossigam, indicando, neste caso, as diligências a efectuar e o prazo para o seu cumprimento.
2 — O assistente e o denunciante com a faculdade de se constituir assistente podem, se optarem por não requerer a abertura da instrução, suscitar a intervenção hierárquica, ao abrigo do número anterior, no prazo previsto para aquele requerimento.

Artigo 279.o
Reabertura do inquérito
1 — Esgotado o prazo a que se refere o artigo anterior, o inquérito só pode ser reaberto se surgirem novos elementos de prova que invalidem os fundamentos invocados pelo Ministério Público no despacho de arquivamento.
2 — Do despacho do Ministério Público que deferir ou recusar a reabertura do inquérito há reclamação para o superior hierárquico imediato.


With thanks to Joana for the translation:

Article 278 - Hierarchical Intervention

1) During the period of 20 days counting after the date when the opening of the instruction can no longer be requested, the immediate hierarchical superior of the magistrate from the Public Ministry may, by is own initiative or by request of the assistant or of the denouncer with capacity to be constituted as an assistant, determine that the accusation is formally made or that the investigation proceeds, indicating, in this case, which are the diligences to be made as well as the deadline within which they must be completed.

2) The assistant and the denouncer with capacity to be constituted as an assistant may, if they opt not to request the opening of the instruction, appeal for a hierarchical intervention, according to the previous article, within the deadline foreseen for said appeal.


Article 279 - Reopening of the Inquest

1) After the ending of the deadline which is referred in the previous article, the inquest can only be reopened if new elements of proof emerge which invalidate the fundamentation argued by the Public Ministry in the archival dispatch.

2) From the dispatch of the Public Ministry which delays or refuses the reopening of the inquest there is a complaint made to the immediate hierarchical superior. [This part means that one can appeal to, and make a complaint of the Public Ministry's decision to archive the inquest, but only if the number one of this article is established]

http://joana-morais.blogspot.com/2009/07/open-letter-doubts-on-mccann-process.html

The despatch also mentions 287 1.b, which I can't find in English. It seems to concern the ability for an assistente to request the opening of the instruction phase to clarify the facts as to why no charges were laid.

Artigo 287o
Requerimento para abertura da instrução
1 – A abertura da instrução pode ser requerida, no prazo de 20 dias a contar da notificação da acusação ou do arquivamento:
a) Pelo arguido, relativamente a factos pelos quais o Ministério Público ou o assistente, em caso de procedimento dependente de acusação particular, tiverem deduzido acusação; ou
b) Pelo assistente, se o procedimento não depender de acusação particular, relativamente a factos pelos quais o Ministério Público não tiver deduzido acusação.
« Last Edit: January 31, 2016, 08:48:37 AM by Carana »

Offline Carana

Re: Reopening the case following the Archive Report.
« Reply #43 on: January 31, 2016, 09:32:05 AM »
Coming back to this hierarchical intervention business, once the deadline for calling for an instruction had passed (and I haven't checked how long that deadline is), they could, with assistente status, and within 20 days, have requested specific diligences to be carried out (with an indication of the time needed).

My understanding it that that would make sense in a case in which the McCanns felt that it was glaringly obvious that X should be charged but specific actions needed to be undertaken to provide more evidence.

Beyond that, getting the case reopened required fresh evidence that was considered important enough to move the case forward.

Article 278 - Hierarchical Intervention

1) During the period of 20 days counting after the date when the opening of the instruction can no longer be requested, the immediate hierarchical superior of the magistrate from the Public Ministry may, by is own initiative or by request of the assistant or of the denouncer with capacity to be constituted as an assistant, determine that the accusation is formally made or that the investigation proceeds, indicating, in this case, which are the diligences to be made as well as the deadline within which they must be completed.

2) The assistant and the denouncer with capacity to be constituted as an assistant may, if they opt not to request the opening of the instruction, appeal for a hierarchical intervention, according to the previous article, within the deadline foreseen for said appeal.

Offline G-Unit

Re: Reopening the case following the Archive Report.
« Reply #44 on: January 31, 2016, 09:39:48 AM »
So they had 20 days in which to ask for an 'instruction' phase to be opened. Once that deadline passed they had another 20 days to request hierarchically that the investigation should continue. Had they offered to do the reconstruction I think that would have been carried out.
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