Re: McCann appeal to European court of Human rights - THE SUN

by Guest 09.02.18 23:36

There are no fewer than 39 references to the European Court of Human Rights contained in the Portuguese Supreme Court of Justice report. It's very lengthy and without a thorough knowledge of the law, in particular Portuguese law, is incomprehensible. This excerpt however, is easily understood and refers directly to the case of Madeleine McCann..

The ECHR has stressed that issues of public interest should be debated and that opinions expressed on such issues, offensive to the honour of public figures, often arising encrusted in violent, hard and exaggerated language, should be protected by freedom of expression.

In the present case, what is verified is that the respondent conveyed his opinion, in the terms exposed above, taking into account, according to his understanding, the outcome of the elements of evidence and the clues gathered in the scope of the criminal investigation opened by the disappearance of Madeleine McCann on 3/5/07.

Thus, the enhancing judgment and the logical-deductive reasoning he develops throughout the book leads the reader to the conclusion that the child - whose custody and safety, along with that of her siblings Sean McCann and Amelie McCann, were neglected by her parents, here appellants, though neither reckless nor grossly, as it is said in the filing order issued by the prosecutor of the Republic on 21/7/08 - died accidentally inside the apartment where she was, after which occurred the simulation of her abduction and the concealment of her corpse.

While he's reasoning, the respondent questions the grounds or the foundations on which the allegation that Madeleine had been abducted could be sustained.

Those conclusions were subsequently reproduced by the respondent in the documentary and interview mentioned above, where he sought to discredit the affidavit of the appellant Kate McCann.

There is no remaining doubt that the respondent having been up to 2/10/07, the Judicial Police Inspector responsible for coordinating the investigation into the disappearance of Madeleine McCann (n°12 of the proven facts), he could not fail to know, in detail, ..

… the clues and means of proof hitherto collected in it, and the inquiries that had hitherto been carried out.

That is why it is not surprising that the facts related to that investigation that the respondent refers to in the book, in the interview and in the documentary, are mostly facts that occurred and were documented in this investigation (n° 8 of the proven facts).

It should be noted that the understanding defended by the respondent was, also, in almost coincident terms, shared by chief inspector Tavares de Almeida, who wrote the report addressed to the Public Ministry and dated 10/9/7 (n° 9 of the proven facts).

It has still to be reckoned that the Public Ministry by fomenting by the JIC the obtention of (telecommunications) traffic data., alluded to their necessity for the investigation of the crimes of kidnapping, homicide, exposure or abandonment and concealment of a corpse. The sought to be obtained data were furthermore connected to the appellants and included not only the date of the facts but also the period they were staying in Portugal (n°10 of the proven facts).

These data were collected by order of the JIC (n° 11 of the proven fact).

Which means that the thesis profiled by the respondent, at a certain time, deserved being welcomed by the entity constitutionally in charge of carrying out the penal action (n° 11 of the proven facts).

For that matter, the appellants were constituted "arguidos" in the criminal investigation (n° 80 of the proven facts).

This implies that emerged supported suspicion that they had committed crimes or crimes (cf. art. 58° and 59° of the CPP ).

It is true that the criminal investigation was eventually closed, in particular because none of the clues which led to the constitution of the appellants as arguidos was subsequently confirmed or consolidated (n°15 of the proven facts).

However, even in the filing dispatch serious reservations are raised as to the likelihood of the allegation that Madeleine had been abducted, in view of the doubts raised by the Jane Tanner/Kate McCann version.

The investigation intended to see clarified those doubts by the reconstitution of the events mentioned in the closing dispatch, an initiative however that was made unfeasible by the witnesses' failure to appear after being summoned to.

In the said order, it was concluded also that the appellants had neglected, although not recklessly or grossly, the duty of custody of their children, and still that, although it had not been possible to determine if the child was alive or not, it seemed more likely she was dead.

Actually a spokesman for the appellants said on 17/10/07 that they were realistic enough to admit that their daughter was probably dead (n° 75 of the proven facts).

From another angle, it has to be observed that, in the introductory note to the book at stake, the respondent affirms that the book's objective is to restore his good name which, in his understanding, was tarnished in the public sphere, to contribute to the discovery of the material truth and to the achievement of justice (n°23 of the proven facts)

It is clear, however, that the proven facts reveal that the respondent intended, on the one hand, to put in crisis the decision to remove him from the investigation, getting even to the point to suggest there had been a political management of the investigation and, on the other hand, to safeguard the rigour of the work of all the police professionals involved in the investigation until the moment he ceased to coordinate them.

Of all those circumstances does not result, in our view, that underlying the book, the documentary and the interview, exists an defamatory intention against the appellants, i.e an animus injuriandi, but rather an animus informandi and an animus defendendi.(23)

The opinion expressed by the respondent is sufficiently detailed in an intelligible and logical assessment of the facts and elements of evidence gathered in the investigation. Therefore the existence of a mere attack ad hominem to the persons of the appellants is not to be prefigured.

In addition, the disappearance of Madeleine and the subsequent investigation have become subjects of general interest and discussion at national and even international level, which, incidentally, was afforded by the conduct of the appellants themselves (n°s 65 to 71 and 76 to 79 of the proven facts).

Thus, everything points to balancing the interests at stake and following a balancing methodology adapted to the specificity of the case, in the sense of freedom of expression, which in this case requires greater protection, taking into account, also, the European legal context where we are inserted and the influence of the European jurisprudential paradigm of human rights.

[Acknowledgement and thanks to Anne Guedes and pamalam]

As I've said before, if (and that's a very big if), the McCanns lawyer has advised them to proceed with an application to be heard by the ECHR, I should be extremely surprised if it even gets past the doorman.

by **Jill Havern** 10.02.18 11:56

PeterMac: "No mention of court costs in Portugal !
Is this because the "Fund" will not pay for legal expenses - (McVey) but if so, why has the 51k been set aside?"

by Guest 10.02.18 12:22

The Find Madeleine (Leave No Stone Unturned) Company Limited

by Guest 10.02.18 12:24

McCann v. Amaral: Supreme Court Verdict 31st January 2017

Presented before the court of justice in Lisbon..

Fraud or breach of trust ?

During a relaxation moment in one of these meetings, I would have committed a gaffe or, who knows, been inconvenient and undiplomatic. Concerned with the possibility that the McCann couple might be, in one way or another, involved in the disappearance of their daughter, and as I reckoned the types of crimes that could be imputed to them, a fact came to my mind. Were the responsibility of McCann actually confirmed, then the crime of fraud or breach of trust concerning the fund created to search for Madeleine, a fund that held more than 2 million pounds, would follow. The debate was open and, in fact, the assumptions pointed to the aggravated fraud or breach of trust crimes, but it did not belong to Portugal to investigate and judge such a crime. It belonged to the UK, as the fund was registered there.

Our English colleagues became then aware of a harsh reality: the strong possibility of a crime to be investigated in their country, having the McCanns as possible suspects, a prospect that did not seem to please them. I noticed the sudden pallor that invaded their faces.

Gonçalo Amaral

by Doug D 10.02.18 14:20

GeG:

‘PeterMac: "No mention of court costs in Portugal !
Is this because the "Fund" will not pay for legal expenses - (McVey) but if so, why has the 51k been set aside?"

It would be interesting to hear from an accountant specializing in ‘not a charity, but a limited company’ accounting, if such a person exists.

All of the ‘restricted funds’ info. I can pull up on line seems to fall into charities and charity trustees practices and responsibilities and their hands are tied where monies are donated for a specific cause, which is the case here.

They seem to be using the fund and the restricted/unrestricted designations as if it were a charity, which ring-fences the restricted assets (the bulk of the money) to the search and would not therefore be available for court costs, whereas the £51k seemingly set aside for Duarte comes from the unrestricted side were they can do pretty much as they like.

Quite how legally binding charity law and practices are to ‘not a charity, but a limited company’ accounts remains to be seen, but to a lay person, acting equitably, these funds should only be used in the search and once that finishes should be spent on ‘similar cases arising in th UK, Portugal or elsewhere’ as stated.

It is to be noted however that the publicly subscribed element of the News of the World’s reward fund was just chucked at the McCanns, contrary to the designated usages stated in the appeal wording and of course nothing ever came of it.

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by Guest 10.02.18 15:48

Doug D wrote:It would be interesting to hear from an accountant specializing in ‘not a charity, but a limited company’ accounting, if such a person exists.

To keep thread on topic, some information in reply to your comment here..

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