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Understanding the Portuguese criminal process

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Understanding the Portuguese criminal process

Post by Guest on 09.12.11 15:42

I'm not sure who originally wrote this, but it describes perfectly how things work in Portugal. Many thanks to whoever it was who was responsible for this.

1) First thing you have to consider: the owner of a criminal investigation in Portugal is the Public Prosecution. Police forces always act under the "surveillance" of the public prosecution (represented by the Magistrate from the Public Prosecution placed in the territorial area where a crime took place).

2) There's two types of Magistrates
a) Magistrates from the Public Prosecution
b) Magistrates from Courts

The Public Prosecution always have the last word, as they are the ones who are the real "owners" of a criminal investigation.

Now, let's speak about an enquiry.

The enquiry has 3 steps:

- The enquiry (generally performed by Police)
- The instruction (optional)
- The Trial

When there's an investigation going on, we are on the enquiry phase. During this stage, people are given legal status, according to their positions in the enquiry: some are witnesses, some are arguidos. When someone is given the arguido status, that's because there's something that lead to it. That status allows the suspect to protect himself/herself. An arguido can lie or stay in silence, while a witness ought to tell the truth. After all statements, forensic evidence and any other element that can be added to the files, the prosecutor must then decide to charge the arguidos or not. If the Prosecutor archives the files, all legal status (both to witnesses and arguidos, are lifted (very different from cleared - nobody is ever cleared unless there's evidence showing clearly they are innocent)

If the prosecutor charges, or if one of the parts is not satisfied with the result of the enquiry, then we can go to stage 2:

- The arguidos can ask for the "Instruction". The Instruction allows an arguido to read everything on the files, in order they can prove the evidence against them, is wrong. In this phase the "arguido(s)" bring all evidence they can to the files, to prove they have not commited any crime. After this phase, the Prosecutor (after pondering on the new facts from the Instruction), can still charge or archive.

If there's a charge, the case goes to Trial.


If the case is archived, it's only open after new evidence is brought to the files.
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Re: Understanding the Portuguese criminal process

Post by Guest on 09.12.11 16:46

Tony, if you could write to someone in Portugal and get the above clarified from a legal point of view, it might help with the completely innocent of all charges nonsense !!
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Re: Understanding the Portuguese criminal process

Post by Xavier on 09.12.11 20:52

Stella. The following may be helpful.

Article 48 of EU Charter

Definition

1. Everyone who has been charged shall be presumed innocent until proved guilty according to law.

2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.


Legal explanations

Article 48 is the same as Article 6(2) and (3) of the ECHR, which reads as follows:

"2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."

In accordance with Article 52(3), this right has the same meaning and scope as the right
guaranteed by the ECHR.


________________

Given that the McCanns have not at any stage been charged, it follows that they are in law to be presumed to be innoccent. The paragraph concerning "nobody is every cleared etc..." is clearly nonsense.

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Re: Understanding the Portuguese criminal process

Post by Guest on 10.12.11 9:00

@Xavier wrote:1. Everyone who has been charged shall be presumed innocent until proved guilty according to law.

You naughty boy.

You and I both know that the McCann's have not officially been charged with anything yet, so the above does not apply.

Until such a time, the Portuguese police legal process works in the exact same way for every suspect, whatever their crime.
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Re: Understanding the Portuguese criminal process

Post by bobbin on 10.12.11 9:59

Hear Hear Stella,
It's a pity that Xavier, Clarence Mitchel, the McCanns et alia, do not concede that the McCanns have NOT been cleared, nor proven to be innocent.
The legal language is subtle, nevertheless absolutely clear and there are plenty of examples where those responsible for archiving the case have issued their written statements to this effect.

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Re: Understanding the Portuguese criminal process

Post by Guest on 10.12.11 10:58

From the PJ Final Report:

“the constitution of Kate Healey as an arguida was made when she was confronted with concrete elements that might lead to her incrimination, a fact that, within the terms of the penal process law, would officially force that constitution”.

http://www.mccannpjfiles.co.uk/PJ/PJ_Report_English_Translation.pdf


Concrete I believe also means solid, elements I think is evidence.

As we know, Kate was originally a witness and only became an arguida, i.e., a suspect, when confronted with this concrete evidence. Is that right?
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Re: Understanding the Portuguese criminal process

Post by Guest on 10.12.11 11:03

From the PJ Final Report:

Type of Crime : Unknown

How can anyone be cleared of anything, when the crime itself is still undecided?
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Re: Understanding the Portuguese criminal process

Post by Xavier on 10.12.11 11:32

Stella and Bobbin

I am intrigued by your take on this. It seems that you are suggesting that the McCanns or indeed anyone needs to provide "proof" of their innocence.

"It's a pity that Xavier, Clarence Mitchel, the McCanns et alia, do not concede that the McCanns have NOT been cleared, nor proven to be innocent"

"If the Prosecutor archives the files, all legal status (both to witnesses and arguidos, are lifted (very different from cleared - nobody is ever cleared unless there's evidence showing clearly they are innocent) "

"Tony, if you could write to someone in Portugal and get the above clarified from a legal point of view, it might help with the completely innocent of all charges nonsense"

____________________

This is clearly nonsense because in law because there is nothing to clear them of. Unless you are aruging that if under Portuguese law a person is accused or charged, then they are presumed guilty until they provide evidence that they are innocent.

Whoever wrote the article quoted in the OP has the legal position arse about face. I realise you may not like it, but to my mind it is better to argue from a position of the facts as they are, rather than how you might like them to be.

The reason I quoted from the EU charter is that the same principle applies to all European citizens. It applies equally to the McCanns, to Amaral, and to you and me.

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Re: Understanding the Portuguese criminal process

Post by Guest on 10.12.11 12:20

Yes, if you have been charged with a crime.

But this poster was describing how the Portuguese police system works before someone is charged.

As I understand it, not enough evidence to charge someone in Portugal, does not mean there is no evidence and they are innocent.

Cases are often shelved because they cannot progress, they cannot go forward, for whatever reason.

The T9 refused to do a reconstruction, perhaps it is this that prevents the investigation from progressing. Just as Goncalo Amaral is stating needs to be done once the case is reopened.

This poster was clearly showing that just because a case has been shelved, as in hauted until further evidence emerges, it does not mean that the other evidence they already have, which in Kate's case led to her having to become an arguida in the first place, is worthless.
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Re: Understanding the Portuguese criminal process

Post by Xavier on 10.12.11 12:57

X "Unless you are aruging that if under Portuguese law a person is accused or charged, then they are presumed guilty until they provide evidence that they are innocent"

Stella. "Yes, if you have been charged with a crime"

Stella - the position under law is that the onus is on the prosecution to prove their case beyond reasonable doubt. It is emphatically not on the defence to prove innocence. If you are genuinely aruging that the reverse is true it would be interesting if you could provide the evidence or reference upon which you base you assumption.

Prior to being charged, an individual is correctly described as innocent.


.

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Re: Understanding the Portuguese criminal process

Post by Guest on 10.12.11 14:50

Prior to being charged, an individual is correctly described as innocent.

Technically, I would have thought their correct title would be a suspect, or a person of interest, or, as in this case, an Arguido/a. Neither guilty or innocent until proven in a court of law.

Incidentally. As far as I am aware, should the case be reopened on any particular day. All Arguidos/a status are automatically reinstated. Is that correct?
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Re: Understanding the Portuguese criminal process

Post by PeterMac on 10.12.11 15:32

Why would you charge an innocent person ?

A person is "deemed, or held ' to be innocent" until proven guilty by a court. There are actually two different concepts at work here.
Factual guilt, and legal guilt.
Factual guilt starts at the moment the crime is committed. This is the one Police concentrate on.
Legal guilt only starts when the verdict of the court is given. This is the one the defendant concentrates on.
The two do overlap, but not always.
So you can be factually guilty, but found legally not guilty; just as you can be factually not guilty, but be found legally guilty.



Put neatly, by a defence lawyer ref http://blog.bennettandbennett.com/2007/04/factual-guilt-vs-legal-guilt.html (!)
"Factual Guilt vs. Legal Guilt

When people talk about “defending the innocent” or “defending the guilty” they’re talking about factual guilt — did the person do what he’s accused of doing? — rather than legal innocence or guilt — has the government proven beyond a reasonable doubt that the defendant did what he’s accused of doing (and that no defenses apply)?
The distinction is crucial to an understanding of how and why I do what I do.
Whether they did what they’re accused of or not, everybody I represent in trial is legally innocent; they remain that way unless the government can prove them guilty beyond a reasonable doubt (either in a jury trial or with a guilty plea).
Whether my clients are factually innocent or factually guilty — whether they did what they’re accused of doing — isn’t directly relevant to their defense. Often in America factually innocent people are found guilty; more often (I devoutly hope) factually guilty people are not found guilty.
It doesn’t matter much to me whether my clients did what they’re accused of; what matters most is whether the government can prove its case against them."

The last sentence is all you need to know about lawyers. They get paid, and that is it.

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Re: Understanding the Portuguese criminal process

Post by Guest on 10.12.11 15:43

@PeterMac wrote:Why would you charge an innocent person ?

An oxymoron I believe.
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Re: Understanding the Portuguese criminal process

Post by Guest on 10.12.11 15:51

I have to say there is hardly anything online that explains the very basics of Portuguese Police work, which is a real shame. I for one am very interested in finding out more about it.
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Re: Understanding the Portuguese criminal process

Post by Xavier on 10.12.11 16:05

@PeterMac wrote:Why would you charge an innocent person ?

A person is "deemed, or held ' to be innocent" until proven guilty by a court. There are actually two different concepts at work here.
Factual guilt, and legal guilt.
Factual guilt starts at the moment the crime is committed. This is the one Police concentrate on.
Legal guilt only starts when the verdict of the court is given. This is the one the defendant concentrates on.
The two do overlap, but not always.
So you can be factually guilty, but found legally not guilty; just as you can be factually not guilty, but be found legally guilty.



Put neatly, by a defence lawyer ref http://blog.bennettandbennett.com/2007/04/factual-guilt-vs-legal-guilt.html (!)
"Factual Guilt vs. Legal Guilt

When people talk about “defending the innocent” or “defending the guilty” they’re talking about factual guilt — did the person do what he’s accused of doing? — rather than legal innocence or guilt — has the government proven beyond a reasonable doubt that the defendant did what he’s accused of doing (and that no defenses apply)?
The distinction is crucial to an understanding of how and why I do what I do.
Whether they did what they’re accused of or not, everybody I represent in trial is legally innocent; they remain that way unless the government can prove them guilty beyond a reasonable doubt (either in a jury trial or with a guilty plea).
Whether my clients are factually innocent or factually guilty — whether they did what they’re accused of doing — isn’t directly relevant to their defense. Often in America factually innocent people are found guilty; more often (I devoutly hope) factually guilty people are not found guilty.
It doesn’t matter much to me whether my clients did what they’re accused of; what matters most is whether the government can prove its case against them."

The last sentence is all you need to know about lawyers. They get paid, and that is it.

PeterMac - he is quite right. You may not like it, and you may not agree. However, every individual accused of a crime is entitled to a defence. It is part of the legal process and is essential to the concept of justice.

And it IS down to the State (not the government) to prove it's case. If it cannot, then there is something wrong either with the evidence or with the prosecution case.

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Re: Understanding the Portuguese criminal process

Post by Xavier on 10.12.11 16:09

Stella wrote:I have to say there is hardly anything online that explains the very basics of Portuguese Police work, which is a real shame. I for one am very interested in finding out more about it.

Stella. The following link may help a bit

http://www.verbojuridico.com/download/portuguesepenalcode.pdf

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Re: Understanding the Portuguese criminal process

Post by Guest on 10.12.11 16:27

Thank you Xavier. That does seem to apply more to stage 2, as the person describes in my first post.

It is the phase just before and just after arguido/a status and before being charged, that does not seem to be covered in that information. I used a word search for 'arguido' in a somewhat different looking version on McCannfiles earlier today and nothing came up.
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Re: Understanding the Portuguese criminal process

Post by Xavier on 10.12.11 17:39

Stella wrote:Thank you Xavier. That does seem to apply more to stage 2, as the person describes in my first post.

It is the phase just before and just after arguido/a status and before being charged, that does not seem to be covered in that information. I used a word search for 'arguido' in a somewhat different looking version on McCannfiles earlier today and nothing came up.

Not sure I can be of much help, Stella.

The BBC did a "law in action" programme on this,

http://news.bbc.co.uk/1/hi/programmes/law_in_action/7046773.stm

But you need to track down the video. Perhaps there will be a version on youtube?

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Re: Understanding the Portuguese criminal process

Post by PeterMac on 10.12.11 18:03

@Xavier wrote:
PeterMac - he is quite right. You may not like it, and you may not agree. However, every individual accused of a crime is entitled to a defence. It is part of the legal process and is essential to the concept of justice.
And it IS down to the State (not the government) to prove it's case. If it cannot, then there is something wrong either with the evidence or with the prosecution case.
Yes of course I like it. Without that system any state, government, or local vigilante group becomes a tyranny.
The only problem is when people go around saying that because you were not charged or were not convicted, you did not do it.
That is where the concepts get confused, or perhaps where the concepts are deliberately confused.

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Re: Understanding the Portuguese criminal process

Post by Xavier on 10.12.11 18:23

as ever.

But the distinction becomes important when one person accuses another of having committed a crime. Because in law they are innocent, and to suggest otherwise leaves an action for defamation a possibility.

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Re: Understanding the Portuguese criminal process

Post by HotlipsHealy on 10.12.11 18:47

@Xavier wrote:as ever.

But the distinction becomes important when one person accuses another of having committed a crime. Because in law they are innocent, and to suggest otherwise leaves an action for defamation a possibility.

Leaving young children/babies alone and unattended is a crime.
The McCanns admitted that they did this repeatedly. They admitted this crime.
Therefore to accuse them of having committed a crime isn't defamation is it?
They are not innocent.
The only reason, surely, that they haven't been charged is because the PJ want to charge them with something more serious than neglect/abandonment because they believe Madeleine is dead.
The McCanns were involved in the disappearance of their daughter because if the children hadn't been left unattended then Madeleine wouldn't have disappeared.

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Re: Understanding the Portuguese criminal process

Post by Xavier on 10.12.11 19:09

@HotlipsHealy wrote:
@Xavier wrote:as ever.

But the distinction becomes important when one person accuses another of having committed a crime. Because in law they are innocent, and to suggest otherwise leaves an action for defamation a possibility.

Leaving young children/babies alone and unattended is a crime.
The McCanns admitted that they did this repeatedly. They admitted this crime.
Therefore to accuse them of having committed a crime isn't defamation is it?
They are not innocent.
The only reason, surely, that they haven't been charged is because the PJ want to charge them with something more serious than neglect/abandonment because they believe Madeleine is dead.
The McCanns were involved in the disappearance of their daughter because if the children hadn't been left unattended then Madeleine wouldn't have disappeared.

A few points. hotlips.

What crime have they actually committed in law?

Even if it is accepted that they have committed a crime, then it does not mean that one is at liberty to accuse them of committing another more serious crime.

For example, I am pretty sure Unless you are an angel) that you have been guilty at some time in your life of committing a criminal offense. Your admitting that fact would not be a defense to an action for defamation if I were to accuse you of a more serious crime such as child abuse, or murder.

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Re: Understanding the Portuguese criminal process

Post by rainbow-fairy on 10.12.11 22:51

@Xavier wrote:
@HotlipsHealy wrote:
@Xavier wrote:as ever.

But the distinction becomes important when one person accuses another of having committed a crime. Because in law they are innocent, and to suggest otherwise leaves an action for defamation a possibility.

Leaving young children/babies alone and unattended is a crime.
The McCanns admitted that they did this repeatedly. They admitted this crime.
Therefore to accuse them of having committed a crime isn't defamation is it?
They are not innocent.
The only reason, surely, that they haven't been charged is because the PJ want to charge them with something more serious than neglect/abandonment because they believe Madeleine is dead.
The McCanns were involved in the disappearance of their daughter because if the children hadn't been left unattended then Madeleine wouldn't have disappeared.

A few points. hotlips.

What crime have they actually committed in law?

Even if it is accepted that they have committed a crime, then it does not mean that one is at liberty to accuse them of committing another more serious crime.

For example, I am pretty sure Unless you are an angel) that you have been guilty at some time in your life of committing a criminal offense. Your admitting that fact would not be a defense to an action for defamation if I were to accuse you of a more serious crime such as child abuse, or murder.
Xavier, with all due respect, unless I have seriously misunderstood your post that is a complete nonsense argument.

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Re: Understanding the Portuguese criminal process

Post by Xavier on 10.12.11 23:10

OK RF - in what way?

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Re: Understanding the Portuguese criminal process

Post by rainbow-fairy on 10.12.11 23:42

@Xavier wrote:OK RF - in what way?
Its this bit Xavier:
'For example, I am pretty sure Unless you are an angel) that you have been guilty at some time in your life of committing a criminal offense. Your admitting that fact would not be a defense to an action for defamation if I were to accuse you of a more serious crime such as child abuse, or murder.'

I just would've thought that is self-evident. For example, if I'd been charged with speeding of course it wouldn't preclude the possibility that I may have been drunk as well! If I wasn't drunk, I could rightly complain if I was being so accused. Guilty of a does not equal guilty of b.
However, whether you like it or not, the McCanns have admitted to a criminal offence - child neglect. I'm sorry, but under no circumstance is leaving children that young for that long in any way is not ok. Why have they not been charged, therefore? Surely there is enough evidence - they say they left them, Maddies whereabouts are now (allegedly) unknown. That must be enough evidence. I believe they were not charged with neglect because the powers that be had evidence enough to disprove that neglect happened.

Apologies if I misunderstood you.

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