1.Everyone shall possess the right to freely express and publicise his thoughts in words, images or by any other means, as well as the right to inform others, inform himself and be informed without hindrance or discrimination 2.Exercise of the said rights shall not be hindered or limited by any type or form of censorship Constitution of the Portuguese Republic, Article 37.º

On the McCanns' request for annulment of the Supreme Court´s ruling - Update

“Therefore, if the previously mentioned archiving dispatch is not in the strict sense a judicial decision, nor does it have a permanent nature, it would be even less justified calling upon the principle of presumption of innocence to restrict the freedom of expression.”  “And it cannot be said too that the applicants were declared innocent through the archiving dispatch of the criminal process. In truth, the aforementioned dispatch was not issued due to the fact the Public Ministry had acquired the certainty that the applicants had not practise any crime. Such archival, as was the case, was determined since it was not possible for the Public Ministry to obtain sufficient evidence of the practise of crimes by the appellants. Therefore, there is, a distinct difference, and not merely a semantic one, between the legally admissible grounds of the archiving dispatch. It doesn't therefore seem acceptable to consider the referred dispatch, which is based on the insufficiency of evidence, to be equated to proof of innocence. Thus we consider, the invocation of the violation of the principle of innocence should not be taken into account here, since that principle is not relevant for the decision of the question that we must decide.” in Extracts from the Supreme Court's ruling


by M. Carvalho | J. Morais

In a concise manner, the grounds invoked by the Appellants come down to a technicality.

The Appellants argue the Public Prosecutor's Archiving Dispatch filed the criminal investigation under the Code of Criminal Procedure (CPP) article 277.º, no.1, and that the Supreme Court's ruling states they were not exonerated within the no.2 of that same article.

In other words, they allege the Public Ministry prosecutor José de Magalhães e Menezes, and the joint prosecutor João Melchior Gomes archived the process because they were not suspects of any crimes and that, on the other hand, the Supreme Court's judgement was wrong to state that the Archiving Dispatch established that there was not enough evidence gathered to bring charges.

We will go into the legal explanations in the second section of this article, but we would like to stress that the appellants and their lawyer fully dismiss the integrant reasoning and legal groundings of the archiving dispatch, holding on exclusively to this particular article.

This is invoked by the Appellants within the framework of the presumption of innocence, despite the fact that this particular point was never in question. The Supreme Court of Justice went to great lengths to explain this point, concluding: “It should be noted that in the present process, the matter of their penal responsibility is not in dispute, that is, their innocence or culpability, concerning the facts that lead to their daughter's disappearance, so it does not have to be appreciated here. What is under discussion is, and only that, the civil responsibilities of the defendants, due to the fact that they expressed and divulged the thesis/opinion previously mentioned with respect to that disappearance. So much so that the outcome of this process is not susceptible of calling into question the extra processual dimension of the presumption of innocence. That is, even if the action (lawsuit) is rejected, that will not imply, even in the general public eye, any consideration regarding the responsibilities of the Appellants, since such an outcome can never be equated to an assertion of guilt.”

We will just stress again that the presumption of innocence assists any defendant of a penal case, i.e. of a criminal process. It must not be confused with being exonerated nor cleared.

In simpler terms, the archival of the criminal investigation does not exonerate the Appellants but these will always benefit from the presumption of innocence should criminal proceedings eventually be brought against the Appellants. Even though we believe this will never take place for lack of will and true commitment by the authorities in both countries.

Finally, the Appellants seem to have opened an unexpected Pandora's box, their actions may now force a written correction of the article that should have been used in the Archiving Dispatch .

Quid iuris?



Legal explanations with the valuable insight of a Portuguese jurist

The judgement of the Supreme Court of Justice (STJ) shows that their arguments are based on two points: firstly, that Gonçalo Amaral's thesis goes against the right to the presumption of innocence that they enjoy; secondly, that there is a collision of rights between their honour and their good name and the right to freedom of expression of Gonçalo Amaral and, in this case, the later must cede the right to freedom of expression.

As it is known, the Supreme Court of Justice ruled that there was no depreciation of the right to presumption of innocence, even because that issue was not in question. And, they are correct in judgement. The right to presumption of innocence is extended to all criminal proceedings, but here we are not in the context of a criminal process, but rather an action seeking to assess Gonçalo Amaral's civil liability for the violation of the McCanns' rights. Therefore, there is no connection between what Gonçalo Amaral has said and the principle of presumption of innocence in this case, since the presumption of innocence is only related to the criminal process and here we are in the context of civil proceedings. The only issue to assess is which of the fundamental rights in conflict should prevail, and from then a conclusion can be drawn as to whether or not Gonçalo Amaral has violated the McCanns' fundamental rights and therefore has to compensate them.

It should be noted this issue was started with the decision of the first instance court which one could argue had an erroneous assessment of the situation of conflict of rights - it was the first instance that messed up by accepting the argument that the principle of the presumption of innocence was in question at a civil case. Concerning this matter, see pages 68 and following of the Supreme Court´s ruling.

Then, the other question is, according to the Supreme Court's ruling (page 70), the conclusion of the Public Ministry in the Archiving Dispatch is wrong. To clarify: the Archiving Dispatch has a reasoning. Throughout that reasoning, the prosecutor goes on to say how the facts were ascertained, how blood was found in the car rented by the McCanns, that there were traces of blood in the apartment, how the most likely thesis is that of homicide, but also that it was necessary to admit the possibility of abduction. Then the prosecutor goes on to say that the canine markers were not confirmed, that no evidence of the homicide was collected, but that Madeleine could have been killed in the apartment, even though it was not possible to conclude by whom; that the abduction is a possibility to be taken into account due to the witnesses, etc. That is, the reasoning of the Public Ministry suggests that the filing is due to lack of sufficient evidence that the McCanns have committed the crime. However, upon finishing the dispatch, the prosecutor affirms that the archival is done under art. 277/1 of the CPP, which states that the archival is determined when it is concluded that the defendants did not commit the crimes.

In short: the reasoning of the Archiving Dispatch goes in the sense of art. 277/2 of the CPP, but in the last paragraph the prosecutor states the archiving is done under the terms of art. 277/1, that is to say, the reasoning goes towards supporting that "there was not enough evidence collected to prove that it was the McCanns" but the last sentence goes in the sense of "it's archived because it was concluded that it was not the McCanns who committed the crime".

Obviously, there is a contradiction in the Archiving Dispatch. And what matters is the reasoning. And the reasoning goes in the sense that it did not collect sufficient evidence that it was the McCanns who committed the crime. This is what both the Lisbon Court of Appeals and the Supreme Court of Justice state in their judgements.

Now, it can only be concluded that it was not the arguido who committed the crime in two situations: when it is concluded that there is no crime or when it is concluded that the crime was not practised by the arguido, but by another person.

However, what the Public Ministry prosecutors conclude is that there was a crime (if not of homicide, at least of abduction). In this scenario, only if it was known who the real author was, that is, only if the evidence was conclusive in respect to another person could the prosecutor state "it was not the McCanns". In fact, what the Public Ministry concluded was: (1) there was a crime; (2) there is no conclusive evidence that it was the McCanns. This is the result of the reasoning of the Archiving Dispatch. Therefore, the filing was made under art. 277/2 and not of art. 277/1, as, certainly by mistake, the prosecutor affirms.

It turns out that the McCanns cling, with tooth and nail, to the last paragraph of the Archiving Dispatch and to the mention of art. 277/1 to claim that the Public Ministry states that they were not the ones who committed the crime, and that, thus the Archival Dispatch innocents them. And therefore, any claim, whatever the source, that they are guilty or have something to do with their daughter's disappearance is false and therefore offensive to their honour. This is how crafty the McCann's thesis is.

The problem with their thesis is that it expires if we take into account the reasoning of the Archiving Dispatch - that is, that there is insufficient evidence, so far, to prove that it was them. And that's where it all goes: the McCanns are not right because the Archiving Dispatch did not exonerate them (nor it could, unless it was known that the author of the crime was someone else).

The Lisbon Court of Appeals explained that the McCanns were not right and why. The Supreme Court of Justice limited itself to corroborating the position of the Court of Appeals: “It doesn't therefore seem acceptable to consider the referred dispatch, which is based on the insufficiency of evidence, to be equated to proof of innocence.”

Now, let us look at what their reasoning for the annulment of the judgement is.

The McCanns allege the Supreme Court has given as proven fact that the Archiving Dispatch, where the aforementioned last paragraph referring article 277/1 of the CPP is included, was due to the fact that it was concluded that they had not committed a crime.

Then, they argue: if the Supreme Court gave that as proven fact, it cannot then decide that the archiving was done under the article 277/2, nor it can, therefore conclude that they were not exonerated by the Public Ministry. And also, the Supreme Court cannot therefore state that their right to honour has not been violated because, if there was a declaration of innocence, any statement to the contrary violates the good name and reputation of the McCanns.

Therefore, they say, there is a contradiction between the proven facts and the decision of the judgement, which renders it null, an annulment they now request.

It is our understanding that they are not correct because there is no contradiction. The Supreme Court says that the Archiving Dispatch is based on the insufficiency of evidence and, therefore, it is not a declaration of innocence and then decides in accordance with this understanding.

What the McCanns do is to read the judgement up to that fact given as proven and then read the decision, ignoring all of the Supreme Court's arguments that will justify why the court understands that there is no declaration of innocence. They may ignore it, but it is there written, so, without the slightest doubt they will see the request for annulment rejected as manifestly inadmissible.

The Appellant's request will not be upheld because the Supreme Court has already explained in the judgement why it reaches to the conclusions established in the ruling and, as explained, there is no contradiction between the Supreme Court's reasoning and the decision, which is why the McCanns' request will be rejected.

In other words, the McCanns' request in which they seek the annulment of the Supreme Court's ruling is admissible because it meets the eligibility requirements (it was done at the right time, at the right court, it invokes an alleged contradiction between the reasoning of the judgement and its decision, which is the basis for the annulment). But the request will not be upheld, that is to say, it will be rejected, because the McCanns' argument cannot be accepted, since the alleged contradiction does not exist. This is to say that one thing is the admissibility of the request (which will occur, the request will be admitted) and another thing is the decision on the request (which will dismiss it as unfounded).

As to the hypothesis that more than a dilatory strategy, what that they want is to somehow have an argument to proceed with a complaint to the ECtHR. One could argue that there are always these tactics when we are talking about the McCanns. They are free of going to the ECtHR, of course. But if they go there, it will fall flat on its face. And for the very reasons previously invoked.

There is a “frivolity” in the annulment request that is a bit pushing what is acceptable, but still, it can be allowed in the scope of the broader freedom of expression that lawyers have when they are defending their clients.

One hopes the Supreme Court judges would state on the annulment's decision something like: “the Appellants accuse this court of frivolously drawing conclusions, but those who frivolously ignore the reasoning of this court's ruling are the Appellants”.

It should be noted that a request for the annulment of a Supreme Court of Justice ruling is exceptional, rare. And that this request has a suspensory effect. Being suspensive, means that all the consequences of the Supreme Court's ruling are suspended, that is, there is no final and unappealable decision, and therefore, the decision is not definitive and can not be fulfilled, meaning, yes, that Gonçalo Amaral will have to wait for the decision of the Supreme Court on the request for annulment.

Gonçalo Amaral was notified of the request for the annulment of the Supreme Court´s ruling. As there is always the right to adversarial proceedings, Gonçalo Amaral can respond, saying that the ruling of the Supreme Court of Justice does not warrant any rectification or criticism. Then all parties have to await for the ruling of the Supreme Court's conference.

The totality of the judges of the civil section is the conference, the request will be assessed by all judges of the civil section of the Supreme Court of Justice, including those who have deliberated on the judgement called into question. The mechanism should be similar to the distribution of the appeals to the Supreme Court of Justice.

As for the forecast date of the decision, in the Supreme Court of Justice the deadlines are extended. The judges will first submit the draft judgement, then the conference of judges will gather in order to assess the draft, then they will see if there are more votes in favour of or against, then it will be decided what the ruling is, after the judge rapporteur will write the final wording of the judgement according to what was decided by the conference, then the conference will reconvene for the final vote of the decision and for the presentation of the defeated votes, if there are any.

Update


Sooner than we expected, and no doubt due to the weakness of the reasoning presented in the request for annulment of the Supreme Court´s ruling, the Supreme Court of Justice conference has now rejected the McCann's request for annulment.

16 comments:

  1. Great work Joana! And thank you for clarifying the timing expected.

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  2. It sounds like there will be a very long wait for the final decision

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  3. Thanks once again for all your hard work.

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  4. Thank you Joana,this is terrific news for Mr Amaral,God Bless that man

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  5. Absolutely brilliant, informative work Joana! We were wondering! As for the update ...

    It looks as if Isabel Duarte alumnum Ricardo has made a fool of himself - as indeed it was predicted here.

    No need to feel sorry for the kid though. No doubt he has been paid generously to run this errand for Ms. Duarte and for his rhetorical effort ...

    What's next?

    The McCanns' have plenty of money to take the case all the way to Strasbourg - perhaps this is what the denigration of the Portuguese Supreme Court was all about. It terms of "reputation management" it was just a gambit. A stepping stone.

    However, with the UKGB poised to leave the EU on the 29th March - and ditching the Human Rights charter in the process, I don't see how their legal whining will be welcome in France - unless Scotland has its independence and Dr. Gerald McCann is prepared to wear a kilt ...

    The problem with kilts is that the more you bend (to tie your shoe laces, say) the more you expose your rear - and right now the McCanns' rearguard has been so exposed that it must hurt! Metaphorically speaking of course ...

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  6. ; ) All is quite on the western front!

    Interesting to note the partisan (read: carter-rucked) British media seem to have brushed the good/bad news under the carpet.

    I can almost visualize Clarence Mitchell scratching his head with one hand and his backside with the other. LOL Oh! Dear!

    The McCanns are furious! I happen to have one of those telepathic mirrors you saw in "The Beauty and the Beast"... Kate McCann in particular! Ten years of reputation management for nothing! It's understandable!

    "Now! We must take it to Strasbourg! I won't let that "fu****g tosser" get away with it!" She shouts, hysterically.

    Gerry goes: "Calm down darling! We have the Missing People's choir coming up soon on British Got Talent! Clarence has been working hard on that! Think positively! You are the ambassadress for Missing Children, you will be having tea with The Queen on Friday, and Scotland Yard is right now working on "Operation Mincemeat" - I mean ... "Operation Grange" to prove those "geese" wrong! We lost a battle but won the war!" (cough).

    Kate: "The bastard is going to counter-sue us now! Don't you see? We might have to sell the house" (referring to the one they paid with the Fund).

    "I hate him! I hate him! I hate him!" she shouts repeatedly as she bangs her fists on her head!" One nail breaks. She sucks on it.

    Again Gerry tries to reassure her. "No chance he will sue us here! England is not a banana republic! He will be laughed at! He is a "sardine muncher" for Christ's sake!"

    Kate goes on crying inconsolably and sucking on her broken nail.

    Gerry goes on: "And don't you worry about Isabel and our maid's bill! Incompetent people! We ought to have known, they were just exploiting us! Enriching themselves at our expense!

    Cheer up darling! I can's see you like this! It reminds me of that accident! Remember?

    Anyway, if it comes to the worst, uncle Kennedy will foot the bill! J.K. Rolling and Richard Branson will chime in, you know ... and we can still have a good time in the Cayman Islands - when the time comes!

    Clary is working right now on our next PR stunt! After Britain has Got Talent that is. What's wrong pussy-cat!?

    Kate: kicks the door and "Amarillo", the corgi, in the process. The dog leaves the room howling, limping away at high speed as Kate shouts at the top of her voice: "F*CK MEEE!

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  7. Hello Joana, I wonder if your jurist connection could clarify us as to what would happen if the vindictive, well-connected and wealthy McCanns' now took the case to the ECtHR - and won ...

    Will the Supreme Court decision be nullified and G. Amaral have his book - or future works - confiscated and worst made to compensate the McCanns? Does he have to wait another eight years for his assets be frozen? Can he now sue the McCanns'?

    In sum! Can the ECtHR reverse a Supreme Court decision???

    The reason I ask is because I am pretty sure the McCanns' will take the case to the HCtHR, if nothing else as a PR exercise part of their on-going, never ending face-saving, "reputation management" operation.

    On the other hand - conceited as they are, they must have assumed that the Portuguese senior judges must be stupid and hope that they might be reprimanded by their "more civilized" ECtHR colleagues.

    Your thoughts on the implications of a future outcome?

    Your tireless work is much appreciated.
    God bless!

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    1. If the McCanns make a complaint at the ECtHR, it will be against the Portuguese State, not against Gonçalo Amaral. That complaint, even if accepted which seems unlikely since the STJ reasoning was made in accordance with the ECHR (European Convention on
      Human Rights) and its related case law, will not have a suspensive effect on the STJ ruling. There are no more possibilities to appeal at the Portuguese courts, this has come to an end. Soon, the STJ ruling will transit in rem judicatam, the legal costs will be paid by the Appellants, Amaral's assets will be unfrozen, the seized books will be returned to their rightful owner i.e. the book publisher Guerra e Paz, Amaral will be free to re-publish his book "Maddie, The Truth of the Lie" and comment publicly on this case if he wishes. I doubt that he will sue the McCanns, even with his assets unfrozen it's still very costly, both money and time-wise. Other future works that he authors concerning this specific case will of course be liable to more law actions, no doubt the McCanns' lawyers will try to stop those too. Also, I do not envisage any future publication of his book in the UK, by any UK publisher, due to Carter Ruck & English laws. In other words, as long as they have money to pay for lawyers they will try to silence Amaral and other dissenting & credible opinions. Will do a more comprehensive post about this.

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    2. Thank you ever so much Joana! You are a blessing! I look forward to read that post you are working on ...

      One thing just occurred to me. True it will be problematic to counter-sue the super-rich and well-connected McCanns' but - in the last analysis - was not the Portuguese Justice system at fault for allowing this case to proceed in the first place?

      That said I thing the TVI and Guerra & Paz will go after the McCanns' bacon! Just an hunch ...

      Couldn't Gonçalo take the case to the ECt and demand compensation from the Portuguese government - for allowing two (proven) foreigner child neglecters (let's face it!) to use a Portuguese citizen - and an ex-civil servant at that - as a "scape goat"? Wasn't that pretty obvious? Certainly the Supreme Court was not fooled!

      Concerning any future work by Amaral (if any). I doubt the McCanns' would dare playing with the Portuguese Constitution a second time. No way. They may be vindictive and impulsive but they are not stupid. Now they know the Portuguese Justice is not scared of them. Not after the Brexit anyway.

      Also I don't see how the McCanns' could stop the publication of an English, expanded version, particularly if the same is "published in Portugal" or the US for that matter.

      Gonçalo needs not write about the case. He could write about the trials. Pat Brown has long expressed an interest in writing a book in tandem with Gonçalo, so the future surely looks bright ...

      Thanks again Joana! The amount of effort you have put into this case deserves a Pulitzer prize - or the Portuguese equivalent! Prémio Pessoa?

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  8. According to the British gutter press, "Mickey Mouse" Mitchell - the McCanns PR strategist - just blurted:

    "This is just another part of the legal challenge.” adding afterwards that (future possible action was) “a matter for Kate and Gerry’s lawyers in Portugal”.

    Which part of the legal process was "Mickey Mouse" talking about, if any? Probably just befuddling us - as usual! "Iraq has weapons of mass destruction", the "Costa Concordia" hit an iceberg on the Mediterranean or whatever it was - and all that jazz.

    What is puzzling me now is - assuming the UK leaves the EU on the 29th of March as their PM Theresa May says - and in the process ditches the EU Human Rights Charter in favour of a so-called of "Bill of Rights", where does their appeal stand?

    Will the ECtHR then accept a case from England - or China for that matter?

    Another possibility would be for Scotland to (successfully) run for independence and Gerry jumping on that bandwagon, kilt and all!

    Mind you, if wearing a kilt at the High Court (can you imagine?) Gerry has to be careful not to (deliberately) expose his arrears to the Strasbourg judges as he did to their Portuguese counterparts recently (frivolously even if metaphorically)

    Anyway, Kate McCann can now concentrate on her childrens' choir, Britain's Has Got Talent or some other PR stunt - including Scotland Yard "Mincemeat Operation" read: "Operation Grange".

    And we can, at long last sit back and relax! At least a modicum of justice has been served as an aperitif ...

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  9. This comment has been removed by a blog administrator.

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  10. Hi Joanna,

    Thought you maybe interested in this story http://www.msn.com/en-au/news/world/detective-who-spent-years-hunting-madeleine-mccann-claims-someone-is-protecting-kidnapper/ar-BByQbPT?li=AAavLaF&ocid=spartanntp

    Seems very timely that with the supreme court case and Goncalo's book that a ex investigator has come out taking the McAnns side. Damage control? I wonder if this is an investigator that they hired....

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  11. Just read your updates and the comment above! Surprise! Surprise! The McCanns' PR "reputation management" machine is in full throttle despite having been comprehensively knocked-out by the Portuguese Supreme Court. "Mickey Mouse" never gives up does he? They are resilient than a certain terrorist organization! Jeeeesus!

    May be it is just a one-off to divert attention or to compensate for their comprehensive loss to Gonçalo Amaral or more likely a sustained campaign that will go on for decades to come - if not centuries!

    So I am afraid we will need your blog until the end of times!

    Aaaaaaaamen!

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  12. A bit off topic admittedly but gives an idea of the global power of Burson-Marsteller - until recently directed by Clarence Mitchell, the McCanns PR and reputation maestro ... not to mention the global influence of media mogul Rupert Murdoch. Think Rebekha Brooks-David Cameron-Scotland Yard via Matthew Freud/Chipping Norton Set, say ... but I digress ...

    Quoted from today's "Guardian":

    "Burson-Marsteller, the global PR firm once responsible for a smear campaign against Google, now shares a floor of London’s Renzo Piano-designed Central St Giles offices with the search giant’s video arm, Youtube. This proximity must be adding to an atmosphere of paranoia at Google, caught in a storm of protest over whether its ads fund terrorists.

    Burson-Marsteller may no longer be lobbying against Google, as it did in 2011 on behalf of rivals Facebook and Microsoft, but it is not hard to see which global media conglomerate might want to mount a black ops attack against a company that controls much of the digital advertising market....

    ....On the day after the Times investigation, which prompted the Guardian to withdraw its advertising, News Corp’s chief executive, Robert Thomson, denounced digital distributors as platforms for “the fake, the faux and the fallacious”. The owner of the Wall Street Journal, as well as the the Sun, then launched plans for its own digital ad network.

    News Corp also has a $10m (£8m) stake in AppNexus, an ad tech company rival to Google’s DoubleClick – the automated system at the heart of the current controversy over funding hate. Then there is Unruly, the video ad network that was the very first purchase by Rebekah Brooks when she returned to head Murdoch’s UK business." (quote/unquote).

    Draw your own inferences ...

    The fact remains that in the end they failed to beat Gonçalo Amaral and the Portuguese Justice System but the Portuguese PJ lost much of its credit abroad thanks to them - and it will loose even more ... if Scotland Yard frames a patsy OR turns up with a "DNA verified", deaf/mute and/or genetically engineered Madeleine lookalike - in about 10 years time. No joke.

    References:

    https://www.theguardian.com/media/2017/mar/26/battle-rupert-murdoch-google-advertising-e-commerce-fake-news-david-clementi-bbc

    https://en.wikipedia.org/wiki/Chipping_Norton_set

    https://www.theguardian.com/uk-news/2015/aug/18/madeleine-mccann-family-spokesman-launches-pr-agency

    http://science.howstuffworks.com/life/inside-the-mind/human-brain/brainwashing1.htm

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  13. Someone is protecting the kidnappers of Madeleine? Who could that be? Scotland Yard?

    Of course not! Scotland Yard is merely protecting the parents reputation and diverting attention from an "accident" that, according to the dogs, might have happen. Did happen, as it were.

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