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Understanding the Portuguese criminal process

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Re: Understanding the Portuguese criminal process

Post by Xavier on 10.12.11 23:50

OK RF - Yes, you have misunderstood a bit, but probably not well expressed by me. Too much work etc..

You say that the McCanns have admitted to the criminal offence of child neglect.

Can you point to the specific offence that they have committed? And under what law? You may think that this is a bit nitpicking but trust me, it is important. Especially if anyone intends to use this as a defense to defamation.

Off to bed now. Need to be up early!

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Re: Understanding the Portuguese criminal process

Post by rainbow-fairy on 11.12.11 0:06

@Xavier wrote:OK RF - Yes, you have misunderstood a bit, but probably not well expressed by me. Too much work etc..

You say that the McCanns have admitted to the criminal offence of child neglect.

Can you point to the specific offence that they have committed? And under what law? You may think that this is a bit nitpicking but trust me, it is important. Especially if anyone intends to use this as a defense to defamation.

Off to bed now. Need to be up early!
Probably I didn't express my point very well either - this all has the power to spin my head after a while, not for nothing is my 'location' listed as 'going round in circles' Wink
Well nite then Xavier. I'll sleep on it and try to explain better tomorrow what I'm trying to say Wink

____________________
"Ask the dogs, Sandra" - Gerry McCann to Sandra Felgueiras



Truth is artless and innocent - like the eloquence of nature, it is clothed with simplicity and easy persuasion; always open to investigation and analysis, it seeks exposure because it fears not detection.

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Re: Understanding the Portuguese criminal process

Post by Xavier on 11.12.11 8:49

HLH and RF

@RF - we are all doing that!

My post was in relation to this:

"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."

My point is that if this is going to be used in some way as a defence to an allegation of defamation, then you need to be very specific as to what crime has been committed and under what circumstances. Otherwise that defense will fail.

My reading of the law is leaving the children sleeping alone in an apartment, with a system of regular checks, may have been foolish and irresponsible, but is not a crime. Unless you can find a piece of legislation that they have contravened in so doing.

http://www.nspcc.org.uk/Inform/research/questions/child_protection_legislation_in_the_uk_pdf_wdf48953.pdf

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Re: Understanding the Portuguese criminal process

Post by Guest on 11.12.11 9:26

From the PJ's Final Report......................

The PJ's Final Report, 57-page summary, 21 July 2008
PJ Final Report - The full investigation on the McCanns



While it is an unavoidable fact that Madeleine disappeared from Apartment 5A of the 'Ocean Club', the manner and circumstances under which this happened are not – despite the numerous diligences made in that sense -, therefore, the range of crimes that were indicated and referred to during the inquiry remains untouched.

It seems evident to us and because the files contain enough elements for such, that the crime of exposure or abandonment according to article 138 of the Penal Code can be eliminated from that range:

"1 – Whoever places another person's life in danger,

a) By exposing her in a location where she is subject to a situation from which she, on her own, cannot defend herself against; or

b) Abandoning her without defence, whenever the agent had the duty to guard her, to watch over her or to assist her;"


This legal type of crime is only fulfilled with intent, and this intent has to cover the creation of danger to the victim's life, as well as the absence of a capacity to defend herself, on the victim's behalf. In the case of the files and facing the elements that were collected it is evident that none of the arguidos Gerald or Kate acted with intent. The parents could not foresee that in the resort that they chose to spend a brief holiday, they could place the life of any of their children in danger, nor was that demanded from them: it was located in a peaceful area, where most of the residents are foreign citizens of the same nationality and without any known history of this type of criminality.


http://www.mccannfiles.com/id136.html


Very odd summary that. What about fire, and all the other things that could happen when children are left alonel


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Re: Understanding the Portuguese criminal process

Post by Guest on 11.12.11 9:38

@PeterMac wrote:
@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.

Exactly PeterMac, which is why we need confirmation on the legal position of an arguido/a, where a case has been archived in Portugal.
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Re: Understanding the Portuguese criminal process

Post by Me on 11.12.11 9:46

Clearly there is some leg room with the Portuguese system to interepret legal and factual guilt.

After all the Archiving report specifically touches upon their inability to prove their innoncence. Why would they put this in this report if it wasn't a valid legal concept in Portugal?

Here's the passage and comment from Blacksmith:

"the absence of evidence for any involvement of the parents in a serious crime", which, states the document, "seems to result from the objective circumstances of them not being inside the apartment when she disappeared and from their normal behaviour until the disappearance and afterwards.”.

And, secondly, there is the conclusion: that the entire investigation had produced no evidence at all to formulate any intelligible theory as to what had happened and no evidence to decide whether the child is alive or dead.

Thus, the parents claim, and have claimed repeatedly, the authoritative summary of the whole investigation does not support Amaral's claim that the child is definitely dead and, as a matter of simple fact, "clears" them. Judgement should, therefore, be given against Amaral and the handcuffs of the injunction remain in place.

On the other side lies the fact that the report explicitly refuses to "clear" them. In a long section on the vexed question of the inconsistencies in the Tapas 9's version of events, and the need for a reconstruction of their movements to clarify them, it says quite clearly that after all nine were requested to attend, "nevertheless, despite national authorities taking all measures to render their trip to Portugal viable and after the many doubts that they raised about the necessity and opportunity of their trip were clarified several times, they chose not to attend, for unknown motives, which rendered the [attempted reconstruction ] impractical."

"We believe," adds the report, "that the main damage was caused to the McCann arguidos, who lost the possibility to prove what they have protested since they were made arguidos: their innocence regarding the fateful event. The investigation was also disturbed, because these facts remain to be clarified."

If then, the official prosectuor's report states they have not proved their innoncence why have the Team not sued him for libel and how can it be libellous to state or repeat the same conclusions either from this report or indeed the interim one (which was much clearer as to the role of the parents).

You are simply agreeing with the conclusions of the official investigation. How can that be defamatory? Evidence? Quote the same case files both the final report and the interim one quoted.

____________________
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 Me on 11.12.11 9:55

It's worth actually quoting the entire Blacksmith piece in full that i quoted from in my previous post, which was written in Feb 2010:

We had planned to bring our own "twin tracks" – current events and the background to the case – together by this Wednesday but the skeletons are still being shovelled out of the Team McCann cupboard, so not quite. Still, it's unlikely that there'll be a verdict then so perhaps we'll have convergence by judgement day.

Gradually the issues at the heart of the case, which are bigger than Gonçalo Amaral or any other individual, have become clearer. They will remain, like unhealed wounds, until one day, somewhere, a full libel case reaches the courts.

Until then we have the present hearing.

The McCanns' legal team have claimed that Amaral's theory of death in 5A reflects only his own false assumptions. Looking at the investigation as a whole, says the lawyer Duarte, rather than merely the early stages before Amaral was removed, his conclusions are clearly not justified by the investigation evidence. Therefore his repetition of the claim is an outrageous libel and a breach of their rights under Portuguese law.

How to decide the truth? The evidence lies, of course, in the case papers. But to go through them, and the required witness clarifications, would amount to a full-scale trial covering months. The McCanns' case is that even if this were practical – and the costs would be colossal - such an effort would take too long: the damage caused by Amaral's "thesis" has to be addressed as a matter of urgency.

They claimed, therefore, that the key evidence should be the famous archiving dispatch by the prosecutors, a short-cut which can be taken as a factual and unarguable summary of the entire investigation. The relevant passages concern, firstly, "the absence of evidence for any involvement of the parents in a serious crime", which, states the document, "seems to result from the objective circumstances of them not being inside the apartment when she disappeared and from their normal behaviour until the disappearance and afterwards.”.

And, secondly, there is the conclusion: that the entire investigation had produced no evidence at all to formulate any intelligible theory as to what had happened and no evidence to decide whether the child is alive or dead.

Thus, the parents claim, and have claimed repeatedly, the authoritative summary of the whole investigation does not support Amaral's claim that the child is definitely dead and, as a matter of simple fact, "clears" them. Judgement should, therefore, be given against Amaral and the handcuffs of the injunction remain in place.

On the other side lies the fact that the report explicitly refuses to "clear" them. In a long section on the vexed question of the inconsistencies in the Tapas 9's version of events, and the need for a reconstruction of their movements to clarify them, it says quite clearly that after all nine were requested to attend, "nevertheless, despite national authorities taking all measures to render their trip to Portugal viable and after the many doubts that they raised about the necessity and opportunity of their trip were clarified several times, they chose not to attend, for unknown motives, which rendered the [attempted reconstruction ] impractical."

"We believe," adds the report, "that the main damage was caused to the McCann arguidos, who lost the possibility to prove what they have protested since they were made arguidos: their innocence regarding the fateful event. The investigation was also disturbed, because these facts remain to be clarified."

So that is what this judge, and no doubt future judges, will have to confront.

So far two of the McCann claims have been shown to be untrue and go out of the window, unless the judge is both deaf and blind. Factually, there is no "clearance" for the parents in the report, and therefore in the investigation. Secondly the belief in "the involvement" of the McCanns was not Amaral's alone but that of the whole investigative team, as the police testified. A third claim that the document does not support Amaral's belief that the child is dead is true. The prosecutors say that the chances are 50/50 and one of them repeated it in court.

But they say that on the basis of an incomplete, or as the prosecutors describe it, a "disturbed", not just archived, investigation. The very people seeking the protection of the Portuguese justice system refused to co-operate with that system when the investigation took place and, absurdly, remain beyond its reach while sitting in the courtroom! Leaving this conflict of rights and responsibilities aside, one question for the judge immediately arises: if they and the seven other key witnesses had agreed to co-operate would the report still say the same things?

No. Purely as a matter of fact it cannot. The entire reconstruction section is out. The claim that the parents lost their chance to show their innocence is out. And the conclusions arising from their questioning would have to be incorporated into the investigation and therefore the summary's conclusions would have to take a different form, one way or the other.

Would the chances of the child still be, like Schrodinger's cat, an undecidable 50/50? We don't know, because the people claiming the protection of the law will not let us know, even though they were free to do so. So the claim that the archiving summary decides matters of fact and can be used as a short-cut in place of the full investigation record is very moot indeed.

Nor was it acceptable to this judge, although it had been to the semi-secret and hurried second hearing now under appeal. An appeal court could hardly accept as an ultimate factual record a document that one of the parties had influenced by their refusal to return to Portugal. Against the objections of their lawyers the full record of the case on DVD was admitted in evidence. As a result the summary itself, and the circumstances that produced it,can now be assessed as part of the judgement process.

Those are the points that the judge will have to decide on. And more judges in the future. It looks like the lawyers are going to be raking it in for a very long time to come.

____________________
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 rainbow-fairy on 11.12.11 10:03

@Xavier wrote:HLH and RF

@RF - we are all doing that!

My post was in relation to this:

"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."

My point is that if this is going to be used in some way as a defence to an allegation of defamation, then you need to be very specific as to what crime has been committed and under what circumstances. Otherwise that defense will fail.

My reading of the law is leaving the children sleeping alone in an apartment, with a system of regular checks, may have been foolish and irresponsible, but is not a crime. Unless you can find a piece of legislation that they have contravened in so doing.

http://www.nspcc.org.uk/Inform/research/questions/child_protection_legislation_in_the_uk_pdf_wdf48953.pdf
Nice try with the pdf Xavier, but you are being a wee bit selective - cherry-picking, as my Dad would say - as the nspcc also have this to say (from the Home Alone booklet)

"Remember
• Never leave your baby or young child home alone,not even for a few minutes, regardless of whether they are sleeping or awake.The risks and dangers are too great.
• If your child is under the age of about 12, they may not be mature enough to cope with an emergency. They should not be left alone for more than a very short time.
And remember to put all obvious dangers out of reach before you go,such as medicines, matches and sharp objects.
• Even when leaving older children alone, make sure that they are happy about the arrangement and that they know how to contact the emergency services.
Keep your mobile phone with you and make sure they know your number so they can call you if you’re needed.
• If your child is under the age of 16 they shouldn’t be left alone overnight.
• Teach your child about what to do if there’s ever a problem.
Leave a list of people you trust that they could go to or could telephone, such as a neighbour or close relative.




The signs of neglect
There are occasions when nearly all parents find it difficult to cope with the many demands of caring for children. But this does not mean that their children are being neglected. Neglect involves ongoing, severe failure to meet a child's needs. Here are some signs of possible neglect:

•if the child seems underweight and is very small for their age
•if they are poorly clothed, with inadequate protection from the weather
•if they are often absent from school for no apparent reason
•if they are regularly left alone, or in charge of younger brothers or sisters.



Babies should never be left alone, even for a short time. If you notice that a baby or a child under the age of nine has been left on their own, contact the police on 999. They will go to the house to make sure that the child is safe from harm"

Madeleine did not meet the maturity criteria. She was lost. They could and should have been charged but only IF she was actually ever left alone.

____________________
"Ask the dogs, Sandra" - Gerry McCann to Sandra Felgueiras



Truth is artless and innocent - like the eloquence of nature, it is clothed with simplicity and easy persuasion; always open to investigation and analysis, it seeks exposure because it fears not detection.

NORMAN MACDONALD, Maxims and Moral Reflections.
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Re: Understanding the Portuguese criminal process

Post by Guest on 11.12.11 10:24

Good points Me.

What we need to absolutely pin down is this. If the case gets reopened in Portugal tomorrow, will Gerry and Kate automatically become suspects once again? I have been led to believe in the past from a Portuguese poster, that the answer to that one is yes. If this is true, then they have never been cleared of anything. Which just goes to prove that until they have a proper trial, when all the evidence can be presented and challenged, every arguido/a that is currently in the case files, archived under the name Madeleine McCann, is and remains a suspect.
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Re: Understanding the Portuguese criminal process

Post by PeterMac on 11.12.11 10:37

Article 69 of the Portuguese Constitution states:
1. “Children have the right to be protected by the community and the State for their full development, particularly against all forms of abandonment, discrimination and oppression and against the abuse of authority in the family or other institutions.

The Penal Code revised in September 2007 (Law no. 59/2007) says in article 152:
“Whoever repeatedly, or not, inflicts physical or psychological ill-treatment, including corporal punishment, deprivation of liberty and sexual offences, is punished with 1 to 5 years of imprisonment”.

An important idea introduced by law 147/99 is the concept of danger, defined in the 3rd article. Therefore, the child is in danger, when the child is in harsh condition in terms of security, health, training, education and development. The children or youth are in danger, when:
a) They are abandoned or left to fend for themselves.
b) They are physically and/or psychologically and/or sexually abused.

____________________

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Re: Understanding the Portuguese criminal process

Post by rainbow-fairy on 11.12.11 10:45

Stella wrote:Good points Me.

What we need to absolutely pin down is this. If the case gets reopened in Portugal tomorrow, will Gerry and Kate automatically become suspects once again? I have been led to believe in the past from a Portuguese poster, that the answer to that one is yes. If this is true, then they have never been cleared of anything. Which just goes to prove that until they have a proper trial, when all the evidence can be presented and challenged, every arguido/a that is currently in the case files, archived under the name Madeleine McCann, is and remains a suspect.
Thank you, thank you, thank you Stella - I've wanted the answer to this for a while. I was going to start a thread. But I couldn't think how to articulate it properly.
Your answer proves what I've suspected always... That K + G were very, very happy for the case to be archived, for a very important reason!

____________________
"Ask the dogs, Sandra" - Gerry McCann to Sandra Felgueiras



Truth is artless and innocent - like the eloquence of nature, it is clothed with simplicity and easy persuasion; always open to investigation and analysis, it seeks exposure because it fears not detection.

NORMAN MACDONALD, Maxims and Moral Reflections.
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Re: Understanding the Portuguese criminal process

Post by TrollAng on 11.12.11 10:46

Nevertheless, anyone who feels unsatisfied about the epilogue of the investigations, will have the possibility to react against it, having the possibility of eventually changing that epilogue, by prompting diligences based on new evidence, as long as that person has the legitimacy to request them and the requested diligences are serious, pertinent and consequent. They may do so in three ways: by requesting the reopening of the inquiry, under article 279, number 1 of the Penal Process Code; by appealing hierarchically against this dispatch under number 2 of article 278, or in another case, under number 2 of article 279 of the Penal Process Code, or by requesting the opening of the instruction under article 287, number 1, item b, of the Penal Process Code.

Finally, it should be noted that an archiving decision may be a fair decision, although of the possible justice, and, especially, to underline heavily that the archiving of the present files does not equal a definite and irreversible closing of the process. This process, as long as the prescription deadline for the possibly committed crimes does reach its term, and if new evidence that justifies it, appears, can always be reopened, officiously or through the request of an assistant, again ordinate to a final decision of accusation or non accusation.

Therefore, after all seen, analysed and duly pondered, with all that is left exposed, it is determined:

a) The archiving of the Process concerning arguido Robert James Queriol Eveleigh Murat, because there are no indications of the practise of any crime under the dispositions of article 277 number 1 of the Penal Process Code;

b) The archiving of the Process concerning Arguidos Gerald Patrick McCann and Kate Marie Healy, because there are no indications of the practise of any crime under the dispositions of article 277 number 1 of the Penal Process Code.

Article 277 number 3 of the Penal Process Code is to be fulfilled.

Under article 214 number 1 item a) of the Penal Process Code, the coercion measures that have been imposed on the arguidos are declared extinct.

Portimão, 21.07.08

The Republic's Prosecutor

(José de Magalhaes e Menezes)

The Joint General Prosecutor

(signature)

(Joao Melchior Gomes)


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

I think what it says here is that because there is no evidence against the McCanns the arguido status has been lifted. But if they find new evidence the case can be reopened.
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Re: Understanding the Portuguese criminal process

Post by Xavier on 11.12.11 10:50

@PeterMac wrote:Article 69 of the Portuguese Constitution states:
1. “Children have the right to be protected by the community and the State for their full development, particularly against all forms of abandonment, discrimination and oppression and against the abuse of authority in the family or other institutions.

The Penal Code revised in September 2007 (Law no. 59/2007) says in article 152:
“Whoever repeatedly, or not, inflicts physical or psychological ill-treatment, including corporal punishment, deprivation of liberty and sexual offences, is punished with 1 to 5 years of imprisonment”.

An important idea introduced by law 147/99 is the concept of danger, defined in the 3rd article. Therefore, the child is in danger, when the child is in harsh condition in terms of security, health, training, education and development. The children or youth are in danger, when:
a) They are abandoned or left to fend for themselves.
b) They are physically and/or psychologically and/or sexually abused.

I hear what you say PeterMac - but in this context it is important to consider the actual definition of "abandonment". Whatever one my think of the McCanns actions it does not meet the legal definition.

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Re: Understanding the Portuguese criminal process

Post by Xavier on 11.12.11 10:55

@rainbow-fairy wrote:
@Xavier wrote:HLH and RF

@RF - we are all doing that!

My post was in relation to this:

"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."

My point is that if this is going to be used in some way as a defence to an allegation of defamation, then you need to be very specific as to what crime has been committed and under what circumstances. Otherwise that defense will fail.

My reading of the law is leaving the children sleeping alone in an apartment, with a system of regular checks, may have been foolish and irresponsible, but is not a crime. Unless you can find a piece of legislation that they have contravened in so doing.

http://www.nspcc.org.uk/Inform/research/questions/child_protection_legislation_in_the_uk_pdf_wdf48953.pdf
Nice try with the pdf Xavier, but you are being a wee bit selective - cherry-picking, as my Dad would say - as the nspcc also have this to say (from the Home Alone booklet)

"Remember
• Never leave your baby or young child home alone,not even for a few minutes, regardless of whether they are sleeping or awake.The risks and dangers are too great.
• If your child is under the age of about 12, they may not be mature enough to cope with an emergency. They should not be left alone for more than a very short time.
And remember to put all obvious dangers out of reach before you go,such as medicines, matches and sharp objects.
• Even when leaving older children alone, make sure that they are happy about the arrangement and that they know how to contact the emergency services.
Keep your mobile phone with you and make sure they know your number so they can call you if you’re needed.
• If your child is under the age of 16 they shouldn’t be left alone overnight.
• Teach your child about what to do if there’s ever a problem.
Leave a list of people you trust that they could go to or could telephone, such as a neighbour or close relative.




The signs of neglect
There are occasions when nearly all parents find it difficult to cope with the many demands of caring for children. But this does not mean that their children are being neglected. Neglect involves ongoing, severe failure to meet a child's needs. Here are some signs of possible neglect:

•if the child seems underweight and is very small for their age
•if they are poorly clothed, with inadequate protection from the weather
•if they are often absent from school for no apparent reason
•if they are regularly left alone, or in charge of younger brothers or sisters.



Babies should never be left alone, even for a short time. If you notice that a baby or a child under the age of nine has been left on their own, contact the police on 999. They will go to the house to make sure that the child is safe from harm"

Madeleine did not meet the maturity criteria. She was lost. They could and should have been charged but only IF she was actually ever left alone.

It is not a case of a try - either nice or otherwise. It is a case of taking an objective look at possible defences to defamation. And it is hard to see where it could be argued that the McCanns have confessed to a crime. The problem is that when it comes to matters of law, courts are objective, and demand higher standards of evidence and proof than members of a forum might.

In a nutshell, you, I or other members of this forum might hold a particular view. But would it stand up in court?

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reconstruction

Post by russiandoll on 11.12.11 11:26

This is surely why the reconstruction was so important to the PJ....if the tapas group's claims of diligent checking could be disproven then a neglect charge could be brought........proven no intent to check on sleeping children, therefore abandonment under Portuguese law.
This is why a charge could not be brought as far as I can see....there was no way to disprove the group's claims
And why such care and attention was immediately paid by the group to establishing timelines.

Will need to carefully re read the witness statements of others dining or working at the restaurant, I believe there was conflicting info about whether or not there were regular absences from that table and that the balance of statements made PJ conclude that they had to proceed on basis that the checks were as claimed, done........therefore under their laws no abandonment had taken place.
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Re: Understanding the Portuguese criminal process

Post by Guest on 12.12.11 8:56

@Xavier wrote:
@PeterMac wrote:Article 69 of the Portuguese Constitution states:
1. “Children have the right to be protected by the community and the State for their full development, particularly against all forms of abandonment, discrimination and oppression and against the abuse of authority in the family or other institutions.

The Penal Code revised in September 2007 (Law no. 59/2007) says in article 152:
“Whoever repeatedly, or not, inflicts physical or psychological ill-treatment, including corporal punishment, deprivation of liberty and sexual offences, is punished with 1 to 5 years of imprisonment”.

An important idea introduced by law 147/99 is the concept of danger, defined in the 3rd article. Therefore, the child is in danger, when the child is in harsh condition in terms of security, health, training, education and development. The children or youth are in danger, when:
a) They are abandoned or left to fend for themselves.
b) They are physically and/or psychologically and/or sexually abused.

I hear what you say PeterMac - but in this context it is important to consider the actual definition of "abandonment". Whatever one my think of the McCanns actions it does not meet the legal definition.

Have you ever wondered why the listening service at MW Portugal is 'not' available, unlike other countries such as Greece?

Do you think it could be down to 'that' particular countries legal obligations to children?
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Re: Understanding the Portuguese criminal process

Post by Guest on 12.12.11 10:34

@TrollAng wrote:Therefore, after all seen, analysed and duly pondered, with all that is left exposed, it is determined:

a) The archiving of the Process concerning arguido Robert James Queriol Eveleigh Murat, because there are no indications of the practise of any crime under the dispositions of article 277 number 1 of the Penal Process Code;

b) The archiving of the Process concerning Arguidos Gerald Patrick McCann and Kate Marie Healy, because there are no indications of the practise of any crime under the dispositions of article 277 number 1 of the Penal Process Code.

Article 277 number 3 of the Penal Process Code is to be fulfilled.

Under article 214 number 1 item a) of the Penal Process Code, the coercion measures that have been imposed on the arguidos are declared extinct.

Thank you TrollAng.

The wording is quite interesting here.

"there are no indications of the practice of any crime under the dispositions of article 277 number 1 of the Penal Process Cose".

Could this be because the case presented to the PP was listed as "unknown"? This suggests to me that the reason for archiving the case was down to not knowing exactly what crime had been committed. Who and how many people were involved and without a reconstruction, they were unable to find out.

It does not say they have been cleared and are innocent of all charges. I'm not reading this.

What I think it says is, as the case was due to be archived, their Arguido/a status will be lifted, which is a very different thing altogether and from what I can gather, would happen to 'all' Arguidos/a when a case gets archived. It's standard practice.

Who was that Portuguese guy who went on TV to say they are innocent of all charges. Was he from their legal team or the PP office?
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Re: Understanding the Portuguese criminal process

Post by Guest on 12.12.11 13:04

To me it looks like a standard legal procedure, they were archiving the case because they didn't have enough evidence. Goncalo Amaral said that this was because the reconstruction didn't happen. It makes sense to me. If there are inconsistencies/misunderstandings in the abduction theory then the only way to clear them up would be a reconstruction failing any new evidence that would come to light. So the way I understand it is that Murat and the McCanns are no longer Arguidos and the case has been archived. But if new evidence is uncovered then the case will be re-opened and perhaps depending on what is uncovered there will be new witnesses and following from that new Arguidos.

So Gerry McCann says "there is no evidence" and this does appear to be the case legally in Portugal. I think that technically you can interpret this to mean that they are cleared of all charges because there is no case against the McCanns in Portugal and also the charges were unspecified. I think that's what is meant by "the coercion measures are declared extinct".
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Re: Understanding the Portuguese criminal process

Post by rainbow-fairy on 12.12.11 13:07

Stella wrote:
@TrollAng wrote:Therefore, after all seen, analysed and duly pondered, with all that is left exposed, it is determined:

a) The archiving of the Process concerning arguido Robert James Queriol Eveleigh Murat, because there are no indications of the practise of any crime under the dispositions of article 277 number 1 of the Penal Process Code;

b) The archiving of the Process concerning Arguidos Gerald Patrick McCann and Kate Marie Healy, because there are no indications of the practise of any crime under the dispositions of article 277 number 1 of the Penal Process Code.

Article 277 number 3 of the Penal Process Code is to be fulfilled.

Under article 214 number 1 item a) of the Penal Process Code, the coercion measures that have been imposed on the arguidos are declared extinct.

Thank you TrollAng.

The wording is quite interesting here.

"there are no indications of the practice of any crime under the dispositions of article 277 number 1 of the Penal Process Cose".

Could this be because the case presented to the PP was listed as "unknown"? This suggests to me that the reason for archiving the case was down to not knowing exactly what crime had been committed. Who and how many people were involved and without a reconstruction, they were unable to find out.

It does not say they have been cleared and are innocent of all charges. I'm not reading this.

What I think it says is, as the case was due to be archived, their Arguido/a status will be lifted, which is a very different thing altogether and from what I can gather, would happen to 'all' Arguidos/a when a case gets archived. It's standard practice.

Who was that Portuguese guy who went on TV to say they are innocent of all charges. Was he from their legal team or the PP office?
Stella, I don't know who the gentleman in question was, but I do know that if brain cells were pound coins he'd be in no danger of being a millionaire!
How on earth can the McCanns be 'innocent of all charges'? There were no charges brought to be innocent of! Hence he is talking nonsense.
Regards the archiving, I believe you could be right as I had always understood it, from the extracts of the archiving I have read, is not that there was no evidence of a crime, just not enough to bring charges.
One thing I've never understood, re the reconstruction? I guess this would be PeterMac's area, but if anyone else can help, please do.
1)Do the UK police use reconstructions to determine possible guilt or eliminate suspects?
2)If yes, is it mandatory for a suspect to co-operate? What would the outcome be if they didn't?
3)If yes to the above, how and why did the McCanns get away with their non-cooperation, really you could call it obstructing police enquiries...

Any help on this appreciated!

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Truth is artless and innocent - like the eloquence of nature, it is clothed with simplicity and easy persuasion; always open to investigation and analysis, it seeks exposure because it fears not detection.

NORMAN MACDONALD, Maxims and Moral Reflections.
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Re: Understanding the Portuguese criminal process

Post by Xavier on 12.12.11 13:33

Stella - I will try to explain what has happened here.


At the end of the inquiry phase the case is concluded either by closing it or by bringing a charge. The procedure is set out under article 276 (1) of the CPP. It can be closed under article 277 or 286.


If the inquiry phase is concluded without the PP being able to collect sufficent evidence of the crime or who did it would be archived under Article 277 (2).


If it is archived under Article 277 (1) this suggests either that the arguido(s) have not committed the crime or that the procedure is not admissible.


If the decision under article 276 is to charge, then the instrucao (premiminary judicial enquiry) phase begins governed by article 286. This confirms the decision to proceed or not.


It is up to either the defendant or the prosecutor to request this confirmation, and they have twenty days from the date of the decision to do so. Article 287 governs the procedure.

I hope this helps in clarifying the position.

I thought it may be helpful to attempt to answer your questions in a Q/A format below.

Stella: Could this be because the case presented to the PP was listed as "unknown"? This suggests to me that the reason for archiving the case was down to not knowing exactly what crime had been committed. Who and how many people were involved and without a reconstruction, they were unable to find out.

A: In which case it would have been archived under article 277(2).

Stella: It does not say they have been cleared and are innocent of all charges. I'm not reading this.

A: In which case why was it archived under article 277(1)

Stella: What I think it says is, as the case was due to be archived, their Arguido/a status will be lifted, which is a very different thing altogether and from what I can gather, would happen to 'all' Arguidos/a when a case gets archived. It's standard practice.

A: It is. There is a procedure for closing cases. A decision to close the case (article 277), where the arguido status is lifted, or proceed to charge (article 286) where arguido status and its attendant protection remains.

Stella: Who was that Portuguese guy who went on TV to say they are innocent of all charges. Was he from their legal team or the PP office?

A: God knows. But it would appear that he was correct in his analysis, based on the above.





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Re: Understanding the Portuguese criminal process

Post by PeterMac on 12.12.11 14:21

@rainbow-fairy wrote:
One thing I've never understood, re the reconstruction? I guess this would be PeterMac's area, but if anyone else can help, please do.
1)Do the UK police use reconstructions to determine possible guilt or eliminate suspects?
2)If yes, is it mandatory for a suspect to co-operate? What would the outcome be if they didn't?
3)If yes to the above, how and why did the McCanns get away with their non-cooperation, really you could call it obstructing police enquiries...
Any help on this appreciated!

1 Almost never in my experience. I am unaware of any in my Force area during my service.
2 The suspect would be free to decide whether to take part or not. Normal rules against self incrimination would apply and lawyers would probably advise against. No adverse conclusion could be drawn, just as with the 'right to silence'
3 Therefore N/A, under English law. But I do not know the rules or procedures in Portugal.

BUT, the reconstruction was supposed to demonstrate their innocence, by showing clearly how the alleged abductor could have carried out the alleged crime. It was not supposedly to implicate the McCanns. One assumes that is why they originally said they would do it, as an exculpatory exercise. But on mature reflection, and probably on legal advice, they withdrew the offer, possibly when they all realised that it could not possible work.
Strange then that they allowed the making of the Mocumentary, which did exactly the same thing, when it showed how impossible their story was. The sight of JT in tears as her alleged sighting of the alleged man was torn to shreds in public was all we really needed to see. All the fudging over of the discrepancies in the various accounts was just gilt on the gingerbread.

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Re: Understanding the Portuguese criminal process

Post by Guest on 12.12.11 14:27

Xavier, that is a very organised way to explain all the issues raised, thank you.

But can I ask where you got this bit of information from?

If it is archived under Article 277 (1) this suggests either that the arguido(s) have not committed the crime or that the procedure is not admissible.

When you say "this suggests", I get the impression that this is your interpretation off 277(1), as opposed something you have obtained from within the Penal Code.
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Re: Understanding the Portuguese criminal process

Post by Xavier on 12.12.11 14:57

Stella - that is a fair question. The original article is pretty impenetrable. Therefore I used the resources of of the ECBA (European Criminal Bar Association) in analysing the PP statement. I stand by my interpretation, but of course would be happy to argue the toss with anyone who can provide a reasoned aternative argument.

I use the term "suggests" because Article 277(1) offers some alternatives, and I think this is the correct interpretation. The article is quite complex, and offers a range from "There is no crime", to "The defendant has not committed the crime" to "the procedure is not legally admissible). I do not think the first applies, I do not think the investigation offered by the PJ is legally inadmissible (whatever some parties may wish to argue). We are therefore left with the remaining possibility.

http://www.ecba.org/content/

http://www.ecba.org/extdocserv/projects/JusticeForum/Portugal180309.pdf

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Re: Understanding the Portuguese criminal process

Post by Guest on 12.12.11 15:17

@Xavier wrote:Stella - that is a fair question. The original article is pretty impenetrable. Therefore I used the resources of of the ECBA (European Criminal Bar Association) in analysing the PP statement. I stand by my interpretation, but of course would be happy to argue the toss with anyone who can provide a reasoned aternative argument.

I use the term "suggests" because Article 277(1) offers some alternatives, and I think this is the correct interpretation. The article is quite complex, and offers a range from "There is no crime", to "The defendant has not committed the crime" to "the procedure is not legally admissible). I do not think the first applies, I do not think the investigation offered by the PJ is legally inadmissible (whatever some parties may wish to argue). We are therefore left with the remaining possibility.

http://www.ecba.org/content/

http://www.ecba.org/extdocserv/projects/JusticeForum/Portugal180309.pdf


That is quite interesting and I don't know about anyone else, but I'm just loving this thread !!

But it could have been that "the procedure is not legally admissible". This brings me back to the report about the PJ having gained positive information from a text, or a tap or something like that, which was said to have not been obtained through the correct legal channels, therefore could not be used as evidence should the case go to court. Or perhpas it is a combination of several factors. They could not use this intelligence, they currently do not have a provision for accepting dog alerts and as far as I know in Portugal they still need a full 19 DNA markers. Perhaps there was not enough of the usual type of evidence they tend to prosecute with?
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Re: Understanding the Portuguese criminal process

Post by Xavier on 12.12.11 15:42

Well Stella - I think either everyone else is either standing back in amazement. Or have dozed off while we argue. My money is on this being an alternative to mogadon.

OK - when they refer to the procedure being inadmissible, this means the whole of the investigation is fatally flawed. This could happen because a crucial aspect of the investigation, upon which the whole case is founded, is legally inadmissible. It does not apply where just some elements of it are found to be inadmissible - eg the text messages.

If the evidence required to prosecute a case is simply not there, then it is not there and the PP wil have little alternative than to archive the case under article 277(1). There are also time limits for closure of a case, which prevents the authorities from holding a case open indefinitely.

This is all, if you think it through, logical.

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