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Appeal has been accepted by the Appellate Court

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Appeal has been accepted by the Appellate Court

Post by sallypelt on 03.09.15 15:31

Confirmation

Confirmation that the appeal has been accepted by the Appellate Court has been received today from the lawyer. Once again, thank you so very much to everyone who has made a contribution. We will keep you informed.

http://pjga.blogspot.nl/2015/09/confirmation.html

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Re: Appeal has been accepted by the Appellate Court

Post by HelenMeg on 03.09.15 15:34

Excellent ... lets keep supporting the fund.

Is this the reason for the sudden flurry of articles / publicity

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Re: Appeal has been accepted by the Appellate Court

Post by worriedmum on 03.09.15 15:39

@HelenMeg wrote:Excellent ... lets keep supporting the fund.

Is this the reason for the sudden flurry of articles / publicity
thumbsup

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Appeal accepted by Appellate Court

Post by Dutchgirl on 03.09.15 19:29



With special thanks to Hideho

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Re: Appeal has been accepted by the Appellate Court

Post by plebgate on 03.09.15 20:21

@worriedmum wrote:
@HelenMeg wrote:Excellent ... lets keep supporting the fund.

Is this the reason for the sudden flurry of articles / publicity
thumbsup
Excellent news.   thumbsup

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Re: Appeal has been accepted by the Appellate Court

Post by stumo on 03.09.15 22:02

@HelenMeg wrote:Excellent ... lets keep supporting the fund.

Is this the reason for the sudden flurry of articles / publicity


what makes you think that'll happen  big grin

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Re;Appeal granted by Portugal

Post by willowthewisp on 04.09.15 11:37

Is this why we have had extended MSM articles on Operation Grange to be wound down or not, to divert attention from the Appeal process being granted.
Clarence and friends would love to see the case shelved, as they could then carry on stating, no evidence of a crime being committed by Kate and Gerry, tapas group exonerated of any wrong?
They would use the Two investigations as a defence of any further criticising of Kate and Gerry?

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Re: Appeal has been accepted by the Appellate Court

Post by jeanmonroe on 04.09.15 12:18

Would this be the 'same' Appellate' Court where the McCann's, as 'appellants', were so humiliated by having their GA 'book ban' appeal squished before their very eyes?

I 'presume' our fave libel, 'damages' awarding, case 'judge' will NOT be on the 'bench' at the Appellate Court, (istbc, of course)

Will the McCann's, in person, be 'defending' their 'position' in the Appellate Court? (we might even get to 'see' the 'return' of Cuddlcat (version 101. 0. 3.) and the fashionable hair 'ribbons' KM found so 'comforting', back in 'the day')

As GA, so proudly, did and WON, when the McS 'tried', and FAILED and LOST, so abysmally, to 'ban' his book?

His constitutional 'rights' (freedom of expression) were upheld/DEFENDED by THREE judges then, and WILL be AGAIN!

The Appellate 'court' is not 'in the business' of 'rewriting', or 'amending', the Portuguese Constitution, to 'suit' the McCann's.

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Re: Appeal has been accepted by the Appellate Court

Post by Doug D on 04.09.15 14:48

Jeanmonroe:
 
Will the McCann's, in person, be 'defending' their 'position' in the Appellate Court?
 
I don’t know if any of our Portuguese friends can clarify the position, but it has previously been suggested that it will not be an appeal ‘trial’ as such, but more of a consultation, in private, between a couple of judges, looking only at the previous trial and verdict, together with Amaral’s grounds for appeal.
 
CC and the Mc’s will not even get through the front door.
 
It would be good to have this confirmed.

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Re: Appeal has been accepted by the Appellate Court

Post by HelenMeg on 04.09.15 15:10

@willowthewisp wrote:Is this why we have had extended MSM articles on Operation Grange to be wound down or not, to divert attention from the Appeal process being granted.
Clarence and friends would love to see the case shelved, as they could then carry on stating,no evidence of a crime being committed by Kate and Gerry,tapas group exonerated of any wrong?
They would use the Two investigations as a defence of any further criticising of Kate and Gerry?
Maybe - or maybe because of the new letter of request that Wall has prepared..certainly something provoked it and the Team Mc Cann aren't feeling too good.

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Re: Appeal has been accepted by the Appellate Court

Post by jeanmonroe on 04.09.15 16:16

@Doug D wrote:Jeanmonroe:
 
Will the McCann's, in person, be 'defending' their 'position' in the Appellate Court?
 
I don’t know if any of our Portuguese friends can clarify the position, but it has previously been suggested that it will not be an appeal ‘trial’ as such, but more of a consultation, in private, between a couple of judges, looking only at the previous trial and verdict, together with Amaral’s grounds for appeal.
 
CC and the Mc’s will not even get through the front door.
 
It would be good to have this confirmed.

Yes, i always understood the 'appeal' would not be a 'trial', per se, but Judges 'hearing' GA's 'appeal' against the outrageous, imo, erm, 'outcome' at the libel hearing 'case', with the Judges having the power/discretion to 'over turn/confirm/reduce or dismiss entirely' the libel 'case' judgement.

However, having said that, i don't think the McCanns would EVER 'pass up' the 'opportunity', however 'small', of getting their 'faces' in the press!

ANY 'press'!




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Re: Appeal has been accepted by the Appellate Court

Post by Doug D on 04.09.15 19:40

Anne Guedes has kindly translated the two documents:
 
Process: 1454/09.5TVLSB
Authors/ Applicants: Kate Marie Healy McCann and others
Subject: Appeal
Your Ref: Defendant Gonçalo de Sousa Amaral
 
Regarding the above referenced case file, you are notified of the admissibility of the appeal as well as of the content of the order released in EP (Electronic Process), with the reference number 338001289 (Pgs 2382 of the PP (Paper Copy), of which a copy is attached.
Moreover you are notified that the case proceedings will be at the Tribunal da Relação de Lisboa on October 7, 2015
 
Conclusion :
Within the scope of article 617-1 of the CPC (Civil Processual Code) and referring to the grounds of the decision, I consider that the nullities pointed out in the appeal don’t occur and the judgement is maintained as issued. 

Appeal:
I accept the filed appeals, since they meet the deadlines, have been submitted by those with authority to do so and because the decision is appealable. (Articles 629, 631 and 641 all of the new CPC).
The appeal request (Article 645-a) concerns the proceedings with a merely devolutive effect (Article 647-1). 
[“Devolutive” means that the proceedings (facts and law) will be examined by the higher Court but without a suspensive effect on the execution of the judgement.]
 
I notify and declare the release of the proceedings to the Venerable Tribunal da Relação de Lisboa (Lisbon’s Appeal Court ) 
 
http://www.gerrymccannsblogs.co.uk/Conformation.htm
 
Thank you Anne.

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Re: Appeal has been accepted by the Appellate Court

Post by jeanmonroe on 05.09.15 2:13

Well, the 'above' has certainly 'gobbled' my 'gook'!


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Re: Appeal has been accepted by the Appellate Court

Post by Guest on 05.09.15 4:53

First of all a big thank you to Anne Guedes!

So the initial verdict is not suspended, but will be reviewed in October. 
Meaning

- that the book and the dvd are banned and must now be retrieved 
from all shops. A pity really, as it's a costly procedure and with the upcoming 
appeal, that ban could be overturned yet again.

- that Gonçalo Amaral must pay €600.000 damages and interest,
frozen assets have to be sold. Lenghty procedure which must start now.

Gonçalo Amaral's lawyer could have asked the courts to suspend 
the execution of the judgement pending the appeal, 
it's something to apply for by Portuguese law.

Here in the Netherlands the judgement gets suspended the moment 
an appeal is accepted. Same in France. UK as well? Thought so.

I do hope PJGA will explain what's happening

(all IMO & AFAIK)

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Patiently waiting for justice to be done in Lisbon

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Re: Appeal has been accepted by the Appellate Court

Post by TheTruthWillOut on 05.09.15 15:09

@willowthewisp wrote:Is this why we have had extended MSM articles on Operation Grange to be wound down or not, to divert attention from the Appeal process being granted.
Clarence and friends would love to see the case shelved, as they could then carry on stating,no evidence of a crime being committed by Kate and Gerry,tapas group exonerated of any wrong?
They would use the Two investigations as a defence of any further criticising of Kate and Gerry?

I'm not so sure this is the case. I wonder if the press themselves ran these stories to force a response from TM/CM.

It makes no sense to me for TM/CM to get their "buddies" the press to run these stories which then highlights the fact GA's appeal has been accepted and for the press to go on and report the fact a new LOR was sent in July.

If there were no stories to begin with only us on forums and social media would have known.

Games are being played by all sides I think.

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Re: Appeal has been accepted by the Appellate Court

Post by aiyoyo on 05.09.15 15:58

parapono wrote:First of all a big thank you to Anne Guedes!

So the initial verdict is not suspended, but will be reviewed in October. 
Meaning

- that the book and the dvd are banned and must now be retrieved 
from all shops. A pity really, as it's a costly procedure and with the upcoming 
appeal, that ban could be overturned yet again.

- that Gonçalo Amaral must pay €600.000 damages and interest,
frozen assets have to be sold. Lenghty procedure which must start now.

Gonçalo Amaral's lawyer could have asked the courts to suspend 
the execution of the judgement pending the appeal, 
it's something to apply for by Portuguese law.

Here in the Netherlands the judgement gets suspended the moment 
an appeal is accepted. Same in France. UK as well? Thought so.

I do hope PJGA will explain what's happening

(all IMO & AFAIK)

parapono

Patiently waiting for justice to be done in Lisbon


You'd  think if appeal is allowed as next step in the course of things, then the execution of the judgements will be taken collectively as suspensive or not suspensive, until such time as the appeal is accepted and/or appeal verdict is in.  But not so, it would appear, going by this case as example.

The book ban judgement is actionable with immediate effect from the verdict date; whereas the money compensation needs not have to be made until the Appeal Court verdict is had.  If I am not wrong that's my understanding of the current state of things.

In both instances when the Courts ruled the book to be banned, the execution of it was done ahead of the Trial (in the first instance) and ahead of the Appeal (in the subsequent instance).  The action of doing, undoing, redoing and then re-undoing the execution of judgement - involving costs and inconvenience to both parties - is just not pragmatic.  But that (being pragmatic) does not seem to be a consideration for Judges.  
How the law defines which judgement is to be executionable immediately and which is not that can be suspended until further time and another judgement is a mystery to me.

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Re: Appeal has been accepted by the Appellate Court

Post by Guest on 05.09.15 16:24

@aiyoyo

All of the verdict has to be executed now.
Book and dvd out of circulation, damages
+ interest €600.000 paid. 

The execution of the verdict of judge Maria 
Emília de Melo e Castro has not been suspended.

IMO

parapono

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Re: Appeal has been accepted by the Appellate Court

Post by Nina on 05.09.15 17:33

parapono wrote:@aiyoyo

All of the verdict has to be executed now.
Book and dvd out of circulation, damages
+ interest €600.000 paid. 

The execution of the verdict of judge Maria 
Emília de Melo e Castro has not been suspended.

IMO

parapono
The verdict only produces effect after the last possible appeal ( Supreme Court in this case )

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Re: Appeal has been accepted by the Appellate Court

Post by Guest on 05.09.15 18:03

@Nina wrote:
parapono wrote:@aiyoyo

All of the verdict has to be executed now.
Book and dvd out of circulation, damages
+ interest €600.000 paid. 

The execution of the verdict of judge Maria 
Emília de Melo e Castro has not been suspended.

IMO

parapono
The verdict only produces effect after the last possible appeal ( Supreme Court in this case )
No Nina, not in Portugal.
It would help if you read what I posted.
Due regards

parapono

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Re: Appeal has been accepted by the Appellate Court

Post by Nina on 05.09.15 18:39

parapono wrote:
@Nina wrote:
parapono wrote:@aiyoyo

All of the verdict has to be executed now.
Book and dvd out of circulation, damages
+ interest €600.000 paid. 

The execution of the verdict of judge Maria 
Emília de Melo e Castro has not been suspended.

IMO

parapono
The verdict only produces effect after the last possible appeal ( Supreme Court in this case )
No Nina, not in Portugal.
It would help if you read what I posted.
Due regards

parapono
Acknowledgements  to Bronte Textusa................

Concerning Mr Amaral’s appeal, there seems to be a confusion generated by the translation of the following phrase: “O recurso é de apelação (artº 645 alínea a), sobe nos próprios autos (artº645º) e com efeito meramente devolutivo (artº 647º nº1)”

Isabel Oliveira translated it as follows: “The “request “ is of appeal (Article 645, Section a) ), and will be elevated in the next proceedings with a mere non suspensive effect (Article 647, n 1).”

Anne Guedes as: “The appeal request (Article 645-a) concerns the proceedings with a merely devolutive effect (Article 647-1). [“Devolutive” means that the proceedings (facts and law) will be examined by the higher Court but without a suspensive effect on the execution of the judgement.]

The nº1 of artº 647 of the CPC, says the following in Portuguese “se a questão da nulidade da sentença ou da sua reforma for suscitada no âmbito de recurso dela interposto, compete ao juiz apreciá-la no próprio despacho em que se pronuncia sobre a admissibilidade do recurso, não cabendo recurso da decisão de indeferimento.”

This translates to “if the annulment of sentence or its reform [need to be redone in any way] is raised within its appeal, it is up to the judge to appreciate it [pronounce judgment] in the dispatch about the admissibility of appeal, having no place for an appeal to a decision denying it [the request of annulment]”

This article is clearly about the request of annulment of sentence and nothing else. Mr Amaral’s legal team requested within the appeal that sentence be annulled. The judge who received the appeal HAD to decide on whether this was so or not. He HAD to write his decision on the dispatch saying whether the appeal was accepted or not.

That is what the law states, on the act of analysing if appeal is to be accepted or not, IF in it is a request of annulment of sentence, then the decision about this particular must be made at this stage.

The logic is easy to understand. If there are grounds to annul a sentence then why go through the trouble of analysing any other arguments that are based on its validity? The law says, first analyse if the sentence should first exist, then if it should, send arguments for analysis and decision to the appropriate judges.

Besides, it’s a common principle of law that an appeal puts a stop to any execution of a sentence. An appeal is a party saying that a sentence is wrong, wholly or partly. If the process is not concluded, and one of the parts is stating the sentence is wrong, what legal system could execute a sentence on those terms?

To clarify, the sentence of the 1st Instance Court continues valid and the arguments presented by the defendant to contest its content have been accepted and will be analysed and decided upon within the Appeal Court.

The book is not to be taken off the shelf nor has Mr Amaral to pay a single cent at this stage.

The execution of a sentence in Portugal only happens after it as “transitado em julgado” [literal translation: has gone through the traffic of judgment]. This only happens when there are no more appeals to be made.

Hope this clarifies."

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Re: Appeal has been accepted by the Appellate Court

Post by whodunit on 05.09.15 19:24

"Besides, it’s a common principle of law that an appeal puts a stop to any execution of a sentence. An appeal is a party saying that a sentence is wrong, wholly or partly. If the process is not concluded, and one of the parts is stating the sentence is wrong, what legal system could execute a sentence on those terms?"


Exactly. It's absurd to think a judgement can be executed before the appeals process is exhausted. That is not how it's done. Otherwise why not allow courts to summarily execute people on death row who are in the middle of an appeals process and then adjudicate the case afterwards? The appeal, not just the granting of but the mere FILING of, STOPS the judgement of a lower court until the appeals process is exhausted otherwise there is no point at all in filing an appeal. it's the exact same with civil cases. A judge granting an appeal is saying to the appellant  "In my judgement you have grounds to believe this sentence is unjust". The legal system, ANY legal system, is prohibited from allowing a potentially unjust sentence to be carried out once an appeal has been granted.
Imagine the court forcing Amaral to pay the McC's before his appeal is adjudicated. Good luck getting your money back if you win, Snr. Amaral!! Better to keep the assets frozen until a final appeal is exhausted, as every court in the known world understands..



[Oh wait. Didn't the lower court reinstate a ban on the book which was overturned by a higher court? This is almost certainly one of the grounds for Amaral's appeal but it's  also indicative of a court gone rogue.]

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Re: Appeal has been accepted by the Appellate Court

Post by aiyoyo on 05.09.15 19:27

@ parapono,

IIRC, I remember reading elsewhere (can't recall now exactly where from), but most likely from the PJGA site or Anne Guedes' writing somewhere that the monetary award won't have to be settled until Appeal Court verdict is in.  

It makes no sense for the money to be paid out, only for it to have to be recovered should the Appeal Court overturn the Lower Court's judgement.  

Legally it makes no sense either as the legal process is still ongoing until the final appeal is done and dusted and no further appeal is possible.   

The book ban needing to take immediate effect upon judgement I can understand as that serves to halt the damages (ruled by Trial Court) being in circulation.  The monetary award needing to be paid while case is under appeal is just senseless. 

I think the appeal document (shown up thread) states that the judgement of trial court is not suspensive, and NOT that the execution of the judgement is not suspensive.
It makes perfect sense (as it should be) that lower court's judgement shall stand, until if and when a new judgement from higher court supersedes it.  

I have never come across suspensive judgement in civil cases, but suspensive execution of judgement yes, as is prevalent in many countries.  If Portugal is the only country that is the exception, that would beg the question why they created a law that is not only impractical but that also creates more works in term of manpower and more cost to administer.  
If that is an old law, why would they not amend it to be relevant with time and be in line with global standard?  It just boggles the mind.

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Re: Appeal has been accepted by the Appellate Court

Post by Guest on 05.09.15 20:22

@aiyoyo

Whether it makes sense or not, 
this is what's stated on those two scraps of paper.
According to Portuguese law.
Let's face reality, and not act and think 
"as if it happened in the UK".
The beginning and end of the remit of Op Grange:
"As if..."
This trial was started by the McCanns.
In Portugal.
Portuguese law is applied.
Sensible me thinks.

parapono
patiently waiting for justice to be done in Lisbon

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Re: Appeal has been accepted by the Appellate Court

Post by TheTruthWillOut on 05.09.15 21:44

To be pedantic, the remit of OG was for the "investigative review". It is now, and has been for a few years, a "full investigation"

There has been no remit about this full investigation AFAIK? It could be same, different or not have one. We don't know, though.

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Re: Appeal has been accepted by the Appellate Court

Post by Guest on 06.09.15 10:12

whodunit? wrote:"Besides, it’s a common principle of law that an appeal puts a stop to any execution of a sentence. An appeal is a party saying that a sentence is wrong, wholly or partly. If the process is not concluded, and one of the parts is stating the sentence is wrong, what legal system could execute a sentence on those terms?"


Exactly. It's absurd to think a judgement can be executed before the appeals process is exhausted. That is not how it's done. Otherwise why not allow courts to summarily execute people on death row who are in the middle of an appeals process and then adjudicate the case afterwards? The appeal, not just the granting of but the mere FILING of, STOPS the judgement of a lower court until the appeals process is exhausted otherwise there is no point at all in filing an appeal. it's the exact same with civil cases. A judge granting an appeal is saying to the appellant  "In my judgement you have grounds to believe this sentence is unjust". The legal system, ANY legal system, is prohibited from allowing a potentially unjust sentence to be carried out once an appeal has been granted.
Imagine the court forcing Amaral to pay the McC's before his appeal is adjudicated. Good luck getting your money back if you win, Snr. Amaral!! Better to keep the assets frozen until a final appeal is exhausted, as every court in the known world understands..



[Oh wait. Didn't the lower court reinstate a ban on the book which was overturned by a higher court? This is almost certainly one of the grounds for Amaral's appeal but it's  also indicative of a court gone rogue.]
===========


Right, but with one proviso: a court of first instance could declare that its decision CAN be carried out in case of an appeal. It must make that proviso expressis verbis, at least in the Netherlands. If not, then no execution till case decided in highest/last instance.

Did you notice that the whole case will be heard all over again: facts and legal ramifications both?

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