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Understanding the Portuguese criminal process

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Re: Understanding the Portuguese criminal process

Post by Xavier on 13.12.11 12:23

@Me wrote:
@Xavier wrote:
@Me wrote:
@Xavier wrote:Hmmmmm. Not easy to answer. But I will have a go.

Firstly, it is unusual that details of an investigation are revealed in as much detail as they are in this one - it is something unique to Portugal. It is both a commendably open approach and also potentially damaging.

It is not forbidden to discuss the evidence ina negative light. However, there is a fine dividing line between discussing the information provided and using information selectively to draw conculsions of guilt. And to focus on one aspect of the investigation (eg Tavares interim statement) and ignore the archiving statement of the PP.

To try to find an analogy (always difficult and dont shoot me for trying). Take the Jo Yates murder case. It is a fact that her landlord was arrested on suspicion of murder, held for two days before being released on bail. This information is in the public domain. If you now used that information to suggest that he was guilty of a crime then you would (rightly) expose yourself to action for defamation. ,

Not going to shoot you but there is a huge difference with the Jo Yates case in that that was solved and it was proven that someone else committed the murder. Therefore to accuse the landlord now, given that fact, would clearly be defamation.

In the case of Maddie no one has been found guilty, no evidence has been found after 4 years to support the theory of abduction and if you include both the interim and final archicving report as one the conclusions of both are different but both say that the Mccann's have failed to prove their innoncence of involvement / exoneration.

OK - (difficult to find a precise analogy). A question. Had Tabak not been found guilty of murder do you think it would be OK to claim in blogs, and print, that the landlord was guilty, citing the fact that the police had indeed arrested him previously as justification?

I still find that Yates analogy tenuous at best. In the case of the landlord, on the basis, that no evidentiary details were released regarding why he was suspected and arrested then absolutely not, it would be defamatory to claim he murdered her.

This case is much different in that the majority of evidence gathered has been released allowing people to see the evidence against the McCann’s and whilst circumstantial and incomplete it was still sufficient for the Judge in the Amaral book trial to conclude:

We need, the judges say, to stress the following: the facts that led to the applicants' constitution as arguidos within the inquiry were later on not sufficiently valued by the Public Ministry's Prosecutors to lead to a criminal accusation, but those very same facts, seen from a different angle, may lead to a different conclusion from that of the prosecutors.
So whilst the evidence has not been fully tested in a court there appears to be enough evidence there at this stage to at least be able to view the facts of the case and speculate that the parents were indeed involved, according to this Judge.

And that is what is going to be tested in court in February, in the Amaral case.

As far as TB is concerned, that is somewhat different. The terms of the undertaking were quite specific.

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Re: Understanding the Portuguese criminal process

Post by Gillyspot on 13.12.11 12:48

But as far as I am aware Amaral's theory is consistent with the evidence found within the files.

And didn't Gerry McCann said on oath to the Leveson enquiry last month:

I would like to emphasise that I strongly believe in freedom of speech, but where you have people who are repeatedly carrying out inaccuracies and have been shown to do so, then they should be held to account. That is the issue. I don’t have a problem with somebody purporting a theory, writing fiction, suggestions, but clearly we’ve got to a stage where substandard reporting and sources, unnamed, made-up, non-verifiable, are a daily occurrence

And taking this from AG into consideration

"We need, the judges say, to stress the following: the facts that led to the applicants' constitution as arguidos within the inquiry were later on not sufficiently valued by the Public Ministry's Prosecutors to lead to a criminal accusation, but those very same facts, seen from a different angle, may lead to a different conclusion from that of the prosecutors. "


What grounds do the McCanns having lost twice now in the book injunction actually have against Amaral?

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Re: Understanding the Portuguese criminal process

Post by Guest on 13.12.11 12:57

Open Letter - Doubts on the McCann Process

29 July 2009 | Posted by Joana Morais Leave a Comment


The following is an email to a reader and member of the 3 arguidos who had some doubts regarding the Portuguese Penal Code, the McCann's process archival and the feasibility of the request to reopen the process by the former arguidos if they had wished to do so. I believe that it can help to elucidate some doubts, so I'll post here as well.

«I'll try to answer your questions, I just read again the Portuguese Penal Code [the articles 236 up to 310] and asked Astro as well to help me in giving you the correct answers, it's a bit hard to explain legal stuff since I'm not a lawyer. Anyway, there are two distinctions to keep in mind, the request to reopen the process and the request to open the instruction phase.

The reopening of the case by the Public Ministry, with the subsequent investigation by the PJ [the criminal investigative police] only happens if new evidence is considered by the Public Ministry to be relevant. This can happen at any given moment until the process prescribes, generally after 15 years, and if the case is considered to be of homicide, after 20 years. Any person can request the reopening of the process, thus, the arguido, a denouncer with capacity to be constituted as an assistant, an assistant to the process, an anonymous denouncer, anyone can request the opening of the process.

The opening of the instruction phase is something different in the procedures and also in the end result; this type of reopening has to be requested in the legal time limit of 20 days after the archival of the process. Here I'll quote extracts of Astros' explanation: “After being notified of either the accusation or the archiving, the arguido or the assistant may request, within 20 days, the opening of the instruction phase, which will then be conducted by the instruction judge. (…) Then, the instruction judge holds an autonomous investigation, with any instruction actions that he finds necessary, and is obliged to hold an instruction debate, where all parties - the Public Ministry, the arguido, his defendant, the assistant and his lawyer - take part. (…) The instruction phase lasts for a maximum of two months if there are any arguidos under arrest, or four months otherwise. At the end of the instruction phase, the judge will either pronounce the arguido for trial, or not.”

The second alternative that Rogério Alves mentions "(...)“I’m analyzing the process to see if it is worthwhile to give some impulse to the process, that is, to request the opening of the instruction or to advance to a hierarchical superior at the Public Ministry" - is another possibility presented under article 278 of the CPP, translated below.

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.

Then we have the next article which explains what happens in the case if the legal option to ask for the reopening of the inquest is not made by any of the parties within the deadline foreseen in the CPP, which I will also translate.

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]

The McCanns could have stopped the archival at any moment up to the end of the deadlines, or even force the reopening of the process now, if for example they requested to do the legal reconstruction with their friends, or if Kate McCann answered the 48 questions that were never answered, or if any of their Tapas friends requested to do new statements, etc.. Those would be evidences that would oblige the Public Ministry to reopen the process - which means that if the McCanns really wanted the process and the legal investigation into the disappearance [presumed death] of their daughter to continue, they could do it.

If we compare the McCanns to the vast majority of parents whose children are missing or were abducted, it's bizarre, to say the least, that the McCanns don't use what is their legal right to force the authorities of the Country where their daughter was allegedly abducted, to continue the investigation.

I imagine that many parents in the state that the McCanns allege to be, would jump immediately at every single opportunity to keep their children's case "alive". In the McCann case, unfortunately, we only see the parents promoting a non charitable fund, t-shirts, plastic bracelets and using the media to excuse [and also obstruct the investigation…] themselves of their culpability of leaving toddlers alone, an indefensible and negligent act.»


The CPP code can be downloaded in full here [ PDF document]

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


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Re: Understanding the Portuguese criminal process

Post by happychick on 13.12.11 13:03

@Xavier wrote:Happychick - unless new evidence is presented, it is not in their power to request the reopening. There has to be a reason to reopen the case. It is true that either party can request reopening, but it is not an automatic process - thyey would have to provide a reason.

Let's put it this way then. The McCanns could have prevented the case being shelved, they were given 30 days to request it stayed open. In fact they or their family could have done this. Not one of them did. They all let the deadline pass.

Why?

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Re: Understanding the Portuguese criminal process

Post by Gillyspot on 13.12.11 13:08

And it appears they could still now too if Candyfloss' post is correct

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Re: Understanding the Portuguese criminal process

Post by happychick on 13.12.11 13:11

@Gillyspot wrote:And it appears they could still now too if Candyfloss' post is correct

That's what Goncalo has said too. He should know.

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Re: Understanding the Portuguese criminal process

Post by Gillyspot on 13.12.11 13:20

@happychick wrote:
@Gillyspot wrote:And it appears they could still now too if Candyfloss' post is correct

That's what Goncalo has said too. He should know.

So is this yet another stone left unturned by the McCanns?

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Re: Understanding the Portuguese criminal process

Post by Xavier on 13.12.11 14:04

ME asked a question concerning the Public Prosecutor - suggesting that as a civil servant what power would he have.

The following may be helpful concerning the power and role of the Prosecutor and the Attorney General:

Chapter IV Public Prosecutors



Article 221 Functions and Status
(1) Public Prosecutors, as a whole, have the powers to represent the State, take criminal proceedings, defend democratic legality, and defend such interests as are indicated by law.
(2) Public Prosecutors, as a whole, have an independent and autonomous status in conformity with the law.
(3) Public Prosecutors are responsible magistrates, hierarchically graded, and cannot be transferred, suspended, retired, or dismissed except as provided by law.
(4) The Attorney-General has the power to appoint, assign, transfer, and promote the Public Prosecutors; he also has the power to exercise disciplinary action against the latter.

Article 222 Attorney-General
(1) The Attorney-General is the highest authority in public prosecution; the law determines membership and power of the Attorney-General's Office.
(2) The Attorney-General presides over the Attorney-General's Office which includes the Higher Council of the Public Prosecution: the latter includes members elected by the Assembly of the Republic and members elected among them by the Public Prosecutors.

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Re: Understanding the Portuguese criminal process

Post by Guest on 13.12.11 14:09

candyfloss wrote:Open Letter - Doubts on the McCann Process

29 July 2009 | Posted by Joana Morais Leave a Comment


The following is an email to a reader and member of the 3 arguidos who had some doubts regarding the Portuguese Penal Code, the McCann's process archival and the feasibility of the request to reopen the process by the former arguidos if they had wished to do so. I believe that it can help to elucidate some doubts, so I'll post here as well.

«I'll try to answer your questions, I just read again the Portuguese Penal Code [the articles 236 up to 310] and asked Astro as well to help me in giving you the correct answers, it's a bit hard to explain legal stuff since I'm not a lawyer. Anyway, there are two distinctions to keep in mind, the request to reopen the process and the request to open the instruction phase.

The reopening of the case by the Public Ministry, with the subsequent investigation by the PJ [the criminal investigative police] only happens if new evidence is considered by the Public Ministry to be relevant. This can happen at any given moment until the process prescribes, generally after 15 years, and if the case is considered to be of homicide, after 20 years. Any person can request the reopening of the process, thus, the arguido, a denouncer with capacity to be constituted as an assistant, an assistant to the process, an anonymous denouncer, anyone can request the opening of the process.

The opening of the instruction phase is something different in the procedures and also in the end result; this type of reopening has to be requested in the legal time limit of 20 days after the archival of the process. Here I'll quote extracts of Astros' explanation: “After being notified of either the accusation or the archiving, the arguido or the assistant may request, within 20 days, the opening of the instruction phase, which will then be conducted by the instruction judge. (…) Then, the instruction judge holds an autonomous investigation, with any instruction actions that he finds necessary, and is obliged to hold an instruction debate, where all parties - the Public Ministry, the arguido, his defendant, the assistant and his lawyer - take part. (…) The instruction phase lasts for a maximum of two months if there are any arguidos under arrest, or four months otherwise. At the end of the instruction phase, the judge will either pronounce the arguido for trial, or not.”

The second alternative that Rogério Alves mentions "(...)“I’m analyzing the process to see if it is worthwhile to give some impulse to the process, that is, to request the opening of the instruction or to advance to a hierarchical superior at the Public Ministry" - is another possibility presented under article 278 of the CPP, translated below.

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.

Then we have the next article which explains what happens in the case if the legal option to ask for the reopening of the inquest is not made by any of the parties within the deadline foreseen in the CPP, which I will also translate.

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]

The McCanns could have stopped the archival at any moment up to the end of the deadlines, or even force the reopening of the process now, if for example they requested to do the legal reconstruction with their friends, or if Kate McCann answered the 48 questions that were never answered, or if any of their Tapas friends requested to do new statements, etc.. Those would be evidences that would oblige the Public Ministry to reopen the process - which means that if the McCanns really wanted the process and the legal investigation into the disappearance [presumed death] of their daughter to continue, they could do it.

If we compare the McCanns to the vast majority of parents whose children are missing or were abducted, it's bizarre, to say the least, that the McCanns don't use what is their legal right to force the authorities of the Country where their daughter was allegedly abducted, to continue the investigation.

I imagine that many parents in the state that the McCanns allege to be, would jump immediately at every single opportunity to keep their children's case "alive". In the McCann case, unfortunately, we only see the parents promoting a non charitable fund, t-shirts, plastic bracelets and using the media to excuse [and also obstruct the investigation…] themselves of their culpability of leaving toddlers alone, an indefensible and negligent act.»


The CPP code can be downloaded in full here [ PDF document]

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


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Re: Understanding the Portuguese criminal process

Post by Guest on 13.12.11 14:14

Stella wrote:Then we have the next article which explains what happens in the case if the legal option to ask for the reopening of the inquest is not made by any of the parties within the deadline foreseen in the CPP, which I will also translate.

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]

This means, someone, somewhere can challenge the original decision to archive the process.

Maybe Goncalo Amaral is already doing this and this is why he is very confident it will be reopened one day.

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Re: Understanding the Portuguese criminal process

Post by Me on 13.12.11 14:20

@Xavier wrote:ME asked a question concerning the Public Prosecutor - suggesting that as a civil servant what power would he have.

The following may be helpful concerning the power and role of the Prosecutor and the Attorney General:

Chapter IV Public Prosecutors



Article 221 Functions and Status
(1) Public Prosecutors, as a whole, have the powers to represent the State, take criminal proceedings, defend democratic legality, and defend such interests as are indicated by law.
(2) Public Prosecutors, as a whole, have an independent and autonomous status in conformity with the law.
(3) Public Prosecutors are responsible magistrates, hierarchically graded, and cannot be transferred, suspended, retired, or dismissed except as provided by law.
(4) The Attorney-General has the power to appoint, assign, transfer, and promote the Public Prosecutors; he also has the power to exercise disciplinary action against the latter.

Article 222 Attorney-General
(1) The Attorney-General is the highest authority in public prosecution; the law determines membership and power of the Attorney-General's Office.
(2) The Attorney-General presides over the Attorney-General's Office which includes the Higher Council of the Public Prosecution: the latter includes members elected by the Assembly of the Republic and members elected among them by the Public Prosecutors.

No not suggesting what powers he had, simply stating that only a Judge can clear them or exonerate them in a court.

____________________
What is certain is that since the start of the investigation there were  incongruent and even contradictory situations concerning the witness statements; the telephone records of calls that were made and received on mobile phones that belonged to the couple and to the group of friends that were on holidays with them; the movements of people right after the disappearance of the little girl was noticed, concerning the state in which the bedroom from where the child disappeared from was found (closed window? open window? partially open window?) etc., and the mystery would only become even thicker due to the clues that were left by the already mentioned sniffer dogs. - The Words of a JUDGE in relation to the McCanns

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Re: Understanding the Portuguese criminal process

Post by Xavier on 13.12.11 14:24

Stella - it is not open to any member of the public to request reopening of the case. It needs to be someone actually connected with the case, and who can satisfy the PP that there is good reason for doing so.

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Re: Understanding the Portuguese criminal process

Post by Guest on 13.12.11 14:39

Stella wrote: Any person can request the reopening of the process, thus, the arguido, a denouncer with capacity to be constituted as an assistant, an assistant to the process, an anonymous denouncer, anyone can request the opening of the process.

1. Arguido

2. Denouncer with the capacity to be constituted as an assistant. This could be Goncalo Amaral

3. An assistant to the process. This could be Tavares de Almeida.

4. An anonymous denouncer. Someone who comes forward to spill the beans.

#4 Could be anyone from private detectives, to OC staff, to other guests. What I think it means is that anyone who could come forward with a confession or a statement, could in theory request the opening of the process on their evidence.

I was not referring to anyone who was not involved with the original case.


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Re: Understanding the Portuguese criminal process

Post by Guest on 13.12.11 14:47

It seems that the Lawyer's Order can also become assitiente to any process and stop it being shelved....................





To assist and to archive processes (2)

8 November 2008 | Posted by astro



by Gonçalo Amaral



“I make an appeal to you from where I stand: do intervene, with the knowledge and the competence that you are known for”.

The Lawyers’ Order has made itself an assistant in a case trial concerning alleged torture that was committed by policemen against a woman who was condemned for her daughter’s death. It could make itself an assistant in other cases as well, like those of corruption and of financial criminality in general. As far as we know, it hasn’t made itself an assistant in inquiries like those of ‘Operação Furacão’ and Freeport.

It would be nice if the Lawyers’ Order wouldn’t leave us thinking that it doesn’t do so because there the suspects or arguidos aren’t policemen. Certainly not. Alas, in these cases, I prefer to think that it didn’t do so due to pure distraction; therefore, I leave an appeal to whomever it may concern. Not only concerning processes of financial crimes but also thinking of so many other situations. Mister President of the Order, as a father and as a citizen of this country, I make an appeal to you from where I stand: do intervene, with the knowledge and the competence that you are known for, and make yourself an assistant in all of the criminal processes where the law permits such.

This is the only way that you can become a precious instrument in the fight for the un-archiving of those cases where the victims were helpless children. This is the only way to prevent that processes are archived without everything having been investigated, and justice done.


source: Correio da Manhã, 08.11.2008


http://joana-morais.blogspot.com/2008/11/to-assist-and-to-archive-processes-2.html













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Re: Understanding the Portuguese criminal process

Post by Xavier on 13.12.11 14:51

@Me wrote:
@Xavier wrote:ME asked a question concerning the Public Prosecutor - suggesting that as a civil servant what power would he have.

The following may be helpful concerning the power and role of the Prosecutor and the Attorney General:

Chapter IV Public Prosecutors



Article 221 Functions and Status
(1) Public Prosecutors, as a whole, have the powers to represent the State, take criminal proceedings, defend democratic legality, and defend such interests as are indicated by law.
(2) Public Prosecutors, as a whole, have an independent and autonomous status in conformity with the law.
(3) Public Prosecutors are responsible magistrates, hierarchically graded, and cannot be transferred, suspended, retired, or dismissed except as provided by law.
(4) The Attorney-General has the power to appoint, assign, transfer, and promote the Public Prosecutors; he also has the power to exercise disciplinary action against the latter.

Article 222 Attorney-General
(1) The Attorney-General is the highest authority in public prosecution; the law determines membership and power of the Attorney-General's Office.
(2) The Attorney-General presides over the Attorney-General's Office which includes the Higher Council of the Public Prosecution: the latter includes members elected by the Assembly of the Republic and members elected among them by the Public Prosecutors.

No not suggesting what powers he had, simply stating that only a Judge can clear them or exonerate them in a court.

That means that there must be a case to bring. In this case, there IS no case, and therefore nothing from which to clear or exonerate them. They are innocent in the eyes of the law. It is up to the authorities to produce sufficent evidence that they are guilty of a crime, and until that point they are innocent.

Ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit — "The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof.

This is the position, unless you wish to argue that they are guilty until they prove that they are innocent?

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Re: Understanding the Portuguese criminal process

Post by Me on 13.12.11 15:35

@Xavier wrote:
@Me wrote:
@Xavier wrote:ME asked a question concerning the Public Prosecutor - suggesting that as a civil servant what power would he have.

The following may be helpful concerning the power and role of the Prosecutor and the Attorney General:

Chapter IV Public Prosecutors



Article 221 Functions and Status
(1) Public Prosecutors, as a whole, have the powers to represent the State, take criminal proceedings, defend democratic legality, and defend such interests as are indicated by law.
(2) Public Prosecutors, as a whole, have an independent and autonomous status in conformity with the law.
(3) Public Prosecutors are responsible magistrates, hierarchically graded, and cannot be transferred, suspended, retired, or dismissed except as provided by law.
(4) The Attorney-General has the power to appoint, assign, transfer, and promote the Public Prosecutors; he also has the power to exercise disciplinary action against the latter.

Article 222 Attorney-General
(1) The Attorney-General is the highest authority in public prosecution; the law determines membership and power of the Attorney-General's Office.
(2) The Attorney-General presides over the Attorney-General's Office which includes the Higher Council of the Public Prosecution: the latter includes members elected by the Assembly of the Republic and members elected among them by the Public Prosecutors.

No not suggesting what powers he had, simply stating that only a Judge can clear them or exonerate them in a court.

That means that there must be a case to bring. In this case, there IS no case, and therefore nothing from which to clear or exonerate them. They are innocent in the eyes of the law. It is up to the authorities to produce sufficent evidence that they are guilty of a crime, and until that point they are innocent.

Ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit — "The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof.

This is the position, unless you wish to argue that they are guilty until they prove that they are innocent?

It’s not me that states they have to prove their innocence, it’s the prosecutor in the archivng report who does that. He states:

despite the fact that the national authorities took all measures to render their travelling to Portugal possible, due to motives that are unknown, after the many doubts that they raised concerning the need and the opportunity of their travelling were clarified several times, they chose not to show up, which rendered the diligence impossible to perform.

We believe that the main damaged party were the McCann arguidos, who missed the possibility to prove what they have protested since they were made arguidos: their innocence towards the fateful event; the investigation was also hindered, because said facts remain unclear (…)".

How, using this report - the one that supposedly exonerates them, can they be cleared if it says they have missed the chance to prove their innocence?

Also when you look at the interim report, which importantly uses the same facts as the final archiving report, then the conclusions are completely different which is why the judges in the Amaral book trial said:

"Where Amaral differs from the Prosecutors who wrote the dispatch, is in the logical, police-work-related and investigative interpretation that he [Amaral] makes of those facts."

And:

We need, the judges say, to stress the following: the facts that led to the applicants' constitution as arguidos within the inquiry were later on not sufficiently valued by the Public Ministry's Prosecutors to lead to a criminal accusation, but those very same facts, seen from a different angle, may lead to a different conclusion from that of the prosecutors.

What the judges went out of their way to point out was that the final archiving report was simply an interpretation and not a definite finding of fact.

This leads onto the difference between the two reports and reading some of Blacksmith's posts on this matter i'm drawn to the following passages:

What exactly had changed between the writing of the two reports apart from a failure to strengthen the beliefs of the investigators into a 51% likelihood of conviction for an offence? What evidence had Rebelo uncovered to invalidate the conclusions of the interim report rather than merely giving up on the hope of using them in court? How, for example, had the original forensic findings regarding the shutters, window etc, which had implanted severe doubts over the possibility of abduction in the police team's minds, been countered or corrected? Had the contradictions in the Tapas group's timelines been clarified? All that differs in the two phases are the opinions, the interpretations as to the likelihood of a conviction of the parents for anything, which is something very, very different from evidence of exoneration.

Which is pretty much how the judges in the book trial found it.

____________________
What is certain is that since the start of the investigation there were  incongruent and even contradictory situations concerning the witness statements; the telephone records of calls that were made and received on mobile phones that belonged to the couple and to the group of friends that were on holidays with them; the movements of people right after the disappearance of the little girl was noticed, concerning the state in which the bedroom from where the child disappeared from was found (closed window? open window? partially open window?) etc., and the mystery would only become even thicker due to the clues that were left by the already mentioned sniffer dogs. - The Words of a JUDGE in relation to the McCanns

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Re: Understanding the Portuguese criminal process

Post by Guest on 14.12.11 9:36

good post Me.

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Re: Understanding the Portuguese criminal process

Post by Guest on 14.12.11 9:43

Will Kate and Gerry become Arguidos/a once again, when the case gets reopened?

They will have to, if you think about those 48 unanswered questions. It makes logical sense.

They still need answering Kate.

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Re: Understanding the Portuguese criminal process

Post by Guest on 14.12.11 10:34

They would almost certainly have to become Arguidos/a once again, when the case reopens, because of this report, which was only finalised and presented 2 days after they became suspects.


A report by Chief Inspector Tavares de Almeida to the Coordinator of the Criminal Investigation


Where he concludes, after analyzing all the evidence gathered, that the child is dead and the parents were responsible for cadaver occultation, and the entire GROUP was lying since the first day of the investigation.

10 September 2007
(Processo: VOL ,X, p. 2587-2602)


http://www.mccannpjfiles.co.uk/PJ/TAVARES_ALMEIDA.htm

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Re: Understanding the Portuguese criminal process

Post by Guest on 14.12.11 11:25

At the end of the Tavares report it recommends this:

So we suggest that the 'Autos' be sent to the EX.mo Sr. Procurador Geral da R'ublica [General Attorney], in order to:

G) New interrogation of the Arguidos Kate and Gerry McCann;
H) Evaluation of the measure of restraint to be applied in this case;


http://www.mccannpjfiles.co.uk/PJ/TAVARES_ALMEIDA.htm


These conclusions are based on evidence that was collected and available at that time.

How can anyone think it will all be forgotten about.

Political intervention made sure all of this was well and truly swept under the carpet and it's just a matter of time before someone lifts that carpet and deals with it.

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