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

happchick

Thank you for posting this article - I had not read this before.

What now needs to happen then - is for someone to ask the McCanns the vital question.

You say that no one is looking for Madeleine - so ask for the investigation to be re-opened.

Angelique wrote:happchick

Thank you for posting this article - I had not read this before.

What now needs to happen then - is for someone to ask the McCanns the vital question.

You say that no one is looking for Madeleine - so ask for the investigation to be re-opened.

Oh my goodness that would be tempting fate; as if they need that as bad as they need a hole in their head!

Of course they will never in a million year ask for that (reopening that is ) as it's mandatory they cooperate. Can anyone imagine THAT! Co-operate! They will wet their pants before that happens.

I have read somewhere over the past few days and I am talking under correction if I say Amaral said it, but if enough people e-mail the Attorney General (probably talking about 10000 e-mails) he should consider doing it without new evidence. I am trying to find that piece again... lol but there are so many sites and many articles about this case....