**updated** Appeal rejected. McCann's request for annulment of the Supreme Court's decision

Tony Bennett wrote:-

23 Librae wrote:Are the McCanns basically saying that because there is no evidence to charge them that they should be presumed innocent?

I don't know much about law but I don't think no evidence = innocence. Surely no court would support that conclusion. They couldn't possibly win could they?

The way I interpret the McCanns' 9-page submission for the nullification of the Supreme Court's decision is this:

1 There was a police investigation...

2 At the end of that investigation, there was no evidence to bring charges against us...

3 That means we must be treated as innocent in the eyes of the law...

4 Therefore, although the European Convention on Human Rights decrees that people have the right to freedom of expression, they should not have free expression to be able to suggest that someone who is innocent in the eyes of the law (like us) may actually be guilty. Therefore Amaral's book must be banned.

put like this it almost feels as if they have a point ...

Courtesy of Joana. These are the last 3 paragraphs from the article in the link below:

Gonçalo Amaral was notified of the request for the annulment of the Supreme Court´s ruling. As there is always the right to adversarial proceedings, Gonçalo Amaral can respond, saying that the ruling of the Supreme Court of Justice does not warrant any rectification or criticism. Then all parties have to await for the ruling of the Supreme Court's conference.

The totality of the judges of the civil section is the conference, the request will be assessed by all judges of the civil section of the Supreme Court of Justice, including those who have deliberated on the judgement called into question. The mechanism should be similar to the distribution of the appeals to the Supreme Court of Justice.

As for the forecast date of the decision, in the Supreme Court of Justice the deadlines are extended. The judges will first submit the draft judgement, then the conference of judges will gather in order to assess the draft, then they will see if there are more votes in favour of or against, then it will be decided what the ruling is, after the judge rapporteur will write the final wording of the judgement according to what was decided by the conference, then the conference will reconvene for the final vote of the decision and for the presentation of the defeated votes, if there are any.

https://joana-morais.blogspot.co.uk/2017/03/on-mccanns-request-for-annulment-of.html


It makes for nervous reading, I have to admit.

Thx to Joana

https://joana-morais.blogspot.co.uk/2017/03/on-mccanns-request-for-annulment-of.html

On the McCanns' request for annulment of the Supreme Court´s ruling

by Joana Morais 3 hrs ago

“Therefore, if the previously mentioned archiving dispatch is not in the strict sense a judicial decision, nor does it have a permanent nature, it would be even less justified calling upon the principle of presumption of innocence to restrict the freedom of expression.” “And it cannot be said too that the applicants were declared innocent through the archiving dispatch of the criminal process. In truth, the aforementioned dispatch was not issued due to the fact the Public Ministry had acquired the certainty that the applicants had not practise any crime. Such archival, as was the case, was determined since it was not possible for the Public Ministry to obtain sufficient evidence of the practise of crimes by the appellants. Therefore, there is, a distinct difference, and not merely a semantic one, between the legally admissible grounds of the archiving dispatch. It doesn't therefore seem acceptable to consider the referred dispatch, which is based on the insufficiency of evidence, to be equated to proof of innocence. Thus we consider, the invocation of the violation of the principle of innocence should not be taken into account here, since that principle is not relevant for the decision of the question that we must decide.” in Extracts from the Supreme Court's ruling

by M. Carvalho | J. Morais

In a concise manner, the grounds invoked by the Appellants come down to a technicality.

The Appellants argue the Public Prosecutor's Archiving Dispatch filed the criminal investigation under the Civil Procedure Code (CPC) article 277.º, no.1, and that the Supreme Court's ruling states they were not exonerated within the no.2 of that same article.

In other words, they allege the Public Ministry prosecutor José de Magalhães e Menezes, and the joint prosecutor João Melchior Gomes archived the process because they were not suspects of any crimes and that, on the other hand, the Supreme Court's judgement was wrong to state that the Archiving Dispatch established that there was not enough evidence gathered to bring charges.

We will go into the legal explanations in the second section of this article, but we would like to stress that the appellants and their lawyer fully dismiss the integrant reasoning and legal groundings of the archiving dispatch, holding on exclusively to this particular article.

This is invoked by the Appellants within the framework of the presumption of innocence, despite the fact that this particular point was never in question. The Supreme Court of Justice went to great lengths to explain this point, concluding: “It should be noted that in the present process, the matter of their penal responsibility is not in dispute, that is, their innocence or culpability, concerning the facts that lead to their daughter's disappearance, so it does not have to be appreciated here. What is under discussion is, and only that, the civil responsibilities of the defendants, due to the fact that they expressed and divulged the thesis/opinion previously mentioned with respect to that disappearance. So much so that the outcome of this process is not susceptible of calling into question the extra processual dimension of the presumption of innocence. That is, even if the action (lawsuit) is rejected, that will not imply, even in the general public eye, any consideration regarding the responsibilities of the Appellants, since such an outcome can never be equated to an assertion of guilt.”

We will just stress again that the presumption of innocence assists any defendant of a penal case, i.e. of a criminal process. It must not be confused with being exonerated nor cleared.

In simpler terms, the archival of the criminal investigation does not exonerate the Appellants but these will always benefit from the presumption of innocence should criminal proceedings eventually be brought against the Appellants. Even though we believe this will never take place for lack of will and true commitment by the authorities in both countries.

Finally, the Appellants seem to have opened an unexpected Pandora's box, their actions may now force a written correction of the article that should have been used in the Archiving Dispatch .

Quid iuris?

Legal explanations with the valuable insight of a Portuguese jurist

The judgement of the Supreme Court of Justice (STJ) shows that their arguments are based on two points: firstly, that Gonçalo Amaral's thesis goes against the right to the presumption of innocence that they enjoy; secondly, that there is a collision of rights between their honour and their good name and the right to freedom of expression of Gonçalo Amaral and, in this case, the later must cede the right to freedom of expression.

As it is known, the Supreme Court of Justice ruled that there was no depreciation of the right to presumption of innocence, even because that issue was not in question. And, they are correct in judgement. The right to presumption of innocence is extended to all criminal proceedings, but here we are not in the context of a criminal process, but rather an action seeking to assess Gonçalo Amaral's civil liability for the violation of the McCanns' rights. Therefore, there is no connection between what Gonçalo Amaral has said and the principle of presumption of innocence in this case, since the presumption of innocence is only related to the criminal process and here we are in the context of civil proceedings. The only issue to assess is which of the fundamental rights in conflict should prevail, and from then a conclusion can be drawn as to whether or not Gonçalo Amaral has violated the McCanns' fundamental rights and therefore has to compensate them.

It should be noted this issue was started with the decision of the first instance court which one could argue had an erroneous assessment of the situation of conflict of rights - it was the first instance that messed up by accepting the argument that the principle of the presumption of innocence was in question at a civil case. Concerning this matter, see pages 68 and following of the Supreme Court´s ruling.

Then, the other question is, according to the Supreme Court's ruling (page 70), the conclusion of the Public Ministry in the Archiving Dispatch is wrong. To clarify: the Archiving Dispatch has a reasoning. Throughout that reasoning, the prosecutor goes on to say how the facts were ascertained, how blood was found in the car rented by the McCanns, that there were traces of blood in the apartment, how the most likely thesis is that of homicide, but also that it was necessary to admit the possibility of abduction. Then the prosecutor goes on to say that the canine markers were not confirmed, that no evidence of the homicide was collected, but that Madeleine could have been killed in the apartment, even though it was not possible to conclude by whom; that the abduction is a possibility to be taken into account due to the witnesses, etc. That is, the reasoning of the Public Ministry suggests that the filing is due to lack of sufficient evidence that the McCanns have committed the crime. However, upon finishing the dispatch, the prosecutor affirms that the archival is done under art. 277/1 of the CPP, which states that the archival is determined when it is concluded that the defendants did not commit the crimes.

In short: the reasoning of the Archiving Dispatch goes in the sense of art. 277/2 of the CPP, but in the last paragraph the prosecutor states the archiving is done under the terms of art. 277/1, that is to say, the reasoning goes towards supporting that "there was not enough evidence collected to prove that it was the McCanns" but the last sentence goes in the sense of "it's archived because it was concluded that it was not the McCanns who committed the crime".

Obviously, there is a contradiction in the Archiving Dispatch. And what matters is the reasoning. And the reasoning goes in the sense that it did not collect sufficient evidence that it was the McCanns who committed the crime. This is what both the Lisbon Court of Appeals and the Supreme Court of Justice state in their judgements.

Now, it can only be concluded that it was not the arguido who committed the crime in two situations: when it is concluded that there is no crime or when it is concluded that the crime was not practised by the arguido, but by another person.

However, what the Public Ministry prosecutors conclude is that there was a crime (if not of homicide, at least of abduction). In this scenario, only if it was known who the real author was, that is, only if the evidence was conclusive in respect to another person could the prosecutor state "it was not the McCanns". In fact, what the Public Ministry concluded was: (1) there was a crime; (2) there is no conclusive evidence that it was the McCanns. This is the result of the reasoning of the Archiving Dispatch. Therefore, the filing was made under art. 277/2 and not of art. 277/1, as, certainly by mistake, the prosecutor affirms.

It turns out that the McCanns cling, with tooth and nail, to the last paragraph of the Archiving Dispatch and to the mention of art. 277/1 to claim that the Public Ministry states that they were not the ones who committed the crime, and that, thus the Archival Dispatch innocents them. And therefore, any claim, whatever the source, that they are guilty or have something to do with their daughter's disappearance is false and therefore offensive to their honour. This is how crafty the McCann's thesis is.

The problem with their thesis is that it expires if we take into account the reasoning of the Archiving Dispatch - that is, that there is insufficient evidence, so far, to prove that it was them. And that's where it all goes: the McCanns are not right because the Archiving Dispatch did not exonerate them (nor it could, unless it was known that the author of the crime was someone else).

The Lisbon Court of Appeals explained that the McCanns were not right and why. The Supreme Court of Justice limited itself to corroborating the position of the Court of Appeals: “It doesn't therefore seem acceptable to consider the referred dispatch, which is based on the insufficiency of evidence, to be equated to proof of innocence.”

Now, let us look at what their reasoning for the annulment of the judgement is.

The McCanns allege the Supreme Court has given as proven fact that the Archiving Dispatch, where the aforementioned last paragraph referring article 277/1 of the CPP is included, was due to the fact that it was concluded that they had not committed a crime.

Then, they argue: if the Supreme Court gave that as proven fact, it cannot then decide that the archiving was done under the article 277/2, nor it can, therefore conclude that they were not exonerated by the Public Ministry. And also, the Supreme Court cannot therefore state that their right to honour has not been violated because, if there was a declaration of innocence, any statement to the contrary violates the good name and reputation of the McCanns.

Therefore, they say, there is a contradiction between the proven facts and the decision of the judgement, which renders it null, an annulment they now request.

It is our understanding that they are not correct because there is no contradiction. The Supreme Court says that the Archiving Dispatch is based on the insufficiency of evidence and, therefore, it is not a declaration of innocence and then decides in accordance with this understanding.

What the McCanns do is to read the judgement up to that fact given as proven and then read the decision, ignoring all of the Supreme Court's arguments that will justify why the court understands that there is no declaration of innocence. They may ignore it, but it is there written, so, without the slightest doubt they will see the request for annulment dismissed as manifestly inadmissible.

It will not be accepted because the Supreme Court has already explained in the judgement why it reaches to the conclusions established in the ruling and, as explained, there is no contradiction between the Supreme Court's reasoning and the decision, which is why the request of the McCann will be dismissed.

As to the hypothesis that more than a dilatory strategy, what that they want is to somehow have an argument to proceed with a complaint to the ECtHR. One could argue that there are always these tactics when we are talking about the McCanns. They are free of going to the ECtHR, of course. But if they go there, it will fall flat on its face. And for the very reasons previously invoked.

There is a “frivolity” in the annulment request that is a bit pushing what is acceptable, but still, it can be allowed in the scope of the broader freedom of expression that lawyers have when they are defending their clients.

One hopes the Supreme Court judges would state on the annulment's decision something like: “the Appellants accuse this court of frivolously drawing conclusions, but those who frivolously ignore the reasoning of this court's ruling are the Appellants”.

It should be noted that a request for the annulment of a Supreme Court of Justice ruling is exceptional, rare. And that this request has a suspensory effect. Being suspensive, means that all the consequences of the Supreme Court's ruling are suspended, that is, there is no final and unappealable decision, and therefore, the decision is not definitive and can not be fulfilled, meaning, yes, that Gonçalo Amaral will have to wait for the decision of the Supreme Court on the request for annulment.

Gonçalo Amaral was notified of the request for the annulment of the Supreme Court´s ruling. As there is always the right to adversarial proceedings, Gonçalo Amaral can respond, saying that the ruling of the Supreme Court of Justice does not warrant any rectification or criticism. Then all parties have to await for the ruling of the Supreme Court's conference.

The totality of the judges of the civil section is the conference, the request will be assessed by all judges of the civil section of the Supreme Court of Justice, including those who have deliberated on the judgement called into question. The mechanism should be similar to the distribution of the appeals to the Supreme Court of Justice.

As for the forecast date of the decision, in the Supreme Court of Justice the deadlines are extended. The judges will first submit the draft judgement, then the conference of judges will gather in order to assess the draft, then they will see if there are more votes in favour of or against, then it will be decided what the ruling is, after the judge rapporteur will write the final wording of the judgement according to what was decided by the conference, then the conference will reconvene for the final vote of the decision and for the presentation of the defeated votes, if there are any.
-----------------------------------

My only 'query' would be: Did they 'file' their 9 page 'complaint/appeal' in 'time'?

It is 'dated' 16th Feb 2017 which was 16 days AFTER the PSC 'judgement'.

I 'read' that they ONLY had 10 days, from the 'judgement', in which to 'submit' any 'appeal'

Is their 'appeal/complaint' even 'valid'? (in 'law')

If 'filed' outside the statutory 'time limit' (10 days?) will it even 'be heard'?

Or, is this 'latest' erm 'diversion' all only 'for the show'?

SuspiciousMinds wrote:

Verdi wrote:

Cmaryholmes wrote:Are the Mccanns just buying time ?

Well, they're certainly not buying his book are they ?

The Truth of the Lie by Goncalo Amaral

http://goncaloamaraltruthofthelie.blogspot.com/

Don't be too sure - I expect they had to buy a copy of his book and spend lots of money having it translated before they sued him. Snigger...! :D

Titter ye not!

Michael Wright's testimony under oath before a Lisbon Court..

ID [Isabel Duarte - McCanns lawyer] - In which circumstances did the McCanns learn about the book and the documentary?


MW  [Michael Wright  - Kate McCann's cousin's husband] - says they knew before the shelving of the case, that a book would be published. About the documentary, they were told it had been broadcast on TV in April 2009.


ID - When did they read the book and watch the documentary?


MW – They read the book when I sent them the translation that was on the internet in August 2008. They heard about the documentary in March/April 2009. There was a big campaign in Praia da Luz, they needed people to support them and the documentary had a negative effect on that.





ETA:  AnnaEsse who translated the book into English should sue them for a £100,000 translation fee.

plebgate wrote:

Does anyone know whether  the ruling of the Supreme Court still stands until the complaint has been heard?

Snipped from GetemGoncalo's original post..

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.

Get'emGonçalo wrote:

Cmaryholmes wrote:Are the Mccanns just buying time ?

Yes.
Surely Duarte would have advised them of the likely outcome, as is her job?
The longer they buy time the longer Dr Amaral continues to suffer.
I can't say too much, but what they continue to do to Dr Amaral is nothing short of barbaric.
And when it's his turn, I hope he hits them with as much force as they've dished out to him (and his wife and children).
All of that for the sake of a book?
Nah, they're like a couple of pitbulls out to kill a kitten.
To think the NHS harbours so-called doctors such as these is frightening.

A book titled - The Truth of the Lie !!!

Verdi wrote:

SuspiciousMinds wrote:

Verdi wrote:

Cmaryholmes wrote:Are the Mccanns just buying time ?

Well, they're certainly not buying his book are they ?

The Truth of the Lie by Goncalo Amaral

http://goncaloamaraltruthofthelie.blogspot.com/

Don't be too sure - I expect they had to buy a copy of his book and spend lots of money having it translated before they sued him. Snigger...! :D

Titter ye not!

Michael Wright's testimony under oath before a Lisbon Court..

ID [Isabel Duarte - McCanns lawyer] - In which circumstances did the McCanns learn about the book and the documentary?


MW  [Michael Wright  - Kate McCann's cousin's husband] - says they knew before the shelving of the case, that a book would be published. About the documentary, they were told it had been broadcast on TV in April 2009.


ID - When did they read the book and watch the documentary?


MW – They read the book when I sent them the translation that was on the internet in August 2008. They heard about the documentary in March/April 2009. There was a big campaign in Praia da Luz, they needed people to support them and the documentary had a negative effect on that.





ETA:  AnnaEsse who translated the book into English should sue them for a £100,000 translation fee.

Wow - AnnaEsse had translated the whole thing by August 2008 when it was only published in July?

Anne Guedes has added a further note to the annulment request documents on the Pamalam site relating to the legal fees:
 
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.
 
http://www.gerrymccannsblogs.co.uk/Annulment_request.htm

So, this 'annulment request' of the PSC 'judgement' is exactly, ONLY 'that'..............a 'request'

Not 'legally binding' or 'statutory' part of the Portuguese 'judicial process'

'request' DENIED!

Next!

jeanmonroe wrote:So, this 'annulment request' of the PSC 'judgement' is ONLY 'that'..............a 'request'

Not 'legally binding' or statutory part of the Portuguese 'judicial process'

'request' DENIED!

Next!

Exactly. Just another storm in a tea cup from the McC camp.
The Libel case was a civil case and the decision by the Judges in the SC made in regard to Portugese citizens right to freedom of expression/opinion, and upholding the laws of that country for all its citizens.The Judges can't change the Portugese laws to suit the McC's. And they found in favor of GA based upon those laws. The rest is all fluff.

If the request was put in a few days late then that's it surely?

As JeanM has posted it's a request - request denied because they ran out of time?

Next.

The legal assistant who signed the request off - why?   I thought Duarte was the main solicitor.

IMO though the wording of the request has been done by some top light legal guys - maybe that's why the request was late?

Whatever, late is late in any language surely?

Gonçalo Amaral was 'notified of the request' for the annulment of the Supreme Court´s ruling. As there is always the right to adversarial proceedings, Gonçalo Amaral CAN respond, saying 'that the ruling of the Supreme Court of Justice does not warrant ANY rectification or criticism.'
--------------------------------------------

What's the LEGAL 'score' at the moment?

Oh, that's right

GA 3  McS 0

Going to 'extra time' now?

'.......and the 'legal ball' is crossed deep into the penalty area, and GA 'slams' it into the Mcs net......................FOOOUR -NIL!'

I can't read Portuguese, but apparently the request for annulment has been rejected.

http://www.stj.pt/ficheiros/tabelas/Decididas/Civeis/1s-2017-03-21.pdf

Get'emGonçalo wrote:I can't read Portuguese, but apparently the request for annulment has been rejected.

http://www.stj.pt/ficheiros/tabelas/Decididas/Civeis/1s-2017-03-21.pdf

No wonder the facebook page has gone off air again. Pam Gurney's been on duty. She won't be in her usual sunny mood when she hears the latest from Planet Sanity.

Get'emGonçalo wrote:I can't read Portuguese, but apparently the request for annulment has been rejected.

http://www.stj.pt/ficheiros/tabelas/Decididas/Civeis/1s-2017-03-21.pdf

My Portuguese friend says We have won !!

Get'emGonçalo wrote:I can't read Portuguese, but apparently the request for annulment has been rejected.

http://www.stj.pt/ficheiros/tabelas/Decididas/Civeis/1s-2017-03-21.pdf

Copied from the

Supremo Tribunal de Justiça [Supreme Court of Justice]
Descritivo: [description]
Tabela da Sessão de 21-03-2017 10:00 [ table/chart of the sitting/session on 21 March 2017 at 10.00am]
(1ª SECÇÃO) [[section 1]

Recorrente [applicant] : Kate Marie Healy Mccann
Recorrente: Gerald Patrick Mccann
Recorrido: [applied against] Gonçalo Sousa Amaral
Recorrido: Editora Guerra e Paz-Lda

decisão = [decision]
Indeferida = [rejected]

The document is in chart form. There are no comments or observations of any kind.

Sorted!

Supreme Court of Justice
Descriptive:
Session Table 21-03-2017 10:00
(1st SECTION)

Applicant: Kate Marie Healy Mccann
Applicant: Gerald Patrick Mccann
Course: Gonçalo Sousa Amaral
Course: Editora Guerra e Paz-Lda

Decision = [decision]
Rejected = [rejected]

Sorted!

I think that’s one word we’ll all remember from now on!
 
‘Indeferida’.
 
Come on Tracey, get typing.

Doug D wrote:I think that’s one word we’ll all remember from now on!
 
‘Indeferida’.
 
Come on Tracey, get typing.

In case she can't see lower case, please folks allow me a 'HEART-WRENCHING' shouty moment...

"INDEFERIDA, TRACEY! IN-DE-FE-RIDA!!!"

I wonder how much this appeal cost in terms of lawyers' fees. No doubt taken from the Madeleine Fund, No Stone Unturned, and all that.

“Textusa 21 Mar 2017, 17:25:00

http://www.stj.pt/ficheiros/tabelas/Decididas/Civeis/1s-2017-03-21.pdf

Mr Amaral has won

YESSSSSS”


“Indeferido” means rejected.

Now, we are curious as to what the reaction on the British media will be. Any bets?

Fantastic news!  I'm elated for Dr Amaral. 

I do hope he can go from strength to strength now!

So are they finally going to have to pay up now? And pleeeaasssee can Snr. Amaral sue them back now?!