Sunday

Doomed to fail again: Prime suspects Kate and Gerry McCann's Supreme Court annulment request 16th February, 2017 (because it was frivolous!)

February 16, 2017
 
 
Section 1
Case No. 1.454 / 09.5TVLSB.L1.S1
 
Your Excellency Doctor Judge Counselor Rapporteur,
 
KATE MARIE HEALY MCCANN and GERALD PATRICK MCCANN, appellants identified in the case minutes, having been notified of the entire content of the STJ 1st Section's ruling, which redounded on the matter of the appeal for review, come, under the terms and for the purposes of the provisions of articles 615-1(b, c) and 4-1 and 666 of the Code of Civil Procedure, to argue for the assembly the
NULLITY OF THE RULING
What they do, on the following grounds:

The factual assumptions - which are supposed to be valid - of the logical argumentation set out in the ruling now object of complaint contradict and constitute a sense of reason opposite to that which is inferred from the factual ground of the decision,

 
 
Page 02
And this in particular as regards the conclusive epitome on the protection of the rights of the appelants to their good name and reputation, and their intimate relationship with the presumption of innocence or, if we wish to be more rigorous, the status of innocence that they enjoy.
Now,
It is established in the minutes, under point 15 of the factual matter, that, in particular :
(...)
" the non involvement of the parents, assisted witnesses, in any penally relevant action stems from the objective circumstances of them not being inside the apartment when Madeleine disappeared, from the normal behaviour that they displayed until said disappearance and afterwards, as can be amply concluded from witness statements, from the telephone communications analysis and also from the forensics' conclusions, namely the reports from the (Birmingham) Forensic Science Service (FSS) and from the National Institute for Legal Medicine.
 
To this should be added that in fact none of the clues that led to their constitution as “arguidos" was later confirmed or consolidated.
 
 
Page 03
Let's judge it : the information concerning a previous alert of the media before the police was not confirmed, the residues that were marked by the dogs were not corroborated in laboratory, and the initial indications from the above transcribed email (1) better examined afterwards, that ended up appearing to be inconclusive.
(...)
Tests and analyses were performed in two of the most prestigious and credentialed institutions - the National Institute for Legal Medicine and the British Forensic Science Service -, their final results having neither positively evaluated the collected residues nor corroborated the dogs' alerts.
(...) (2)
it was not possible to obtain any evidence that would allow for a average man, enlightened by criteria of logics, of norms and of the general rules of experience, 
 
Note 1: The email on the preliminary DNA analysis by the FSS of the samples collected in the car hired by the Mcs.
 
Note 2 : (...) is substituted to "In spite of all this" in the original document (the filing order)
 
 
Page 04
to formulate any lucid, sensate, serious and honest conclusion about the circumstances under which the child was removed from the apartment (whether dead or alive, whether killed in a neglectful homicide or an intended homicide, whether the victim of a targeted or opportunistic abduction), nor even to produce a consistent prognosis about her destiny and inclusively – and that's the most dramatic - to establish whether she is still alive or, as it seems the more likely, she is dead.
(...)
Therefore, everything having been examined, analysed and duly pondered, considering what is left exposed, we determine
(...)
the archiving of the autos concerning the (by lawyer) assisted witnesses Gerald Patrick McCann and Kate Marie Healy, due to the lack of clues of their practising any crime” (cf. Also, alinea AQ) of the established facts in the normalizing dispatch of the process).
 
The documentary proof that supported the determination of this fact as proved, even in the condensation phase of the proceedings, is, as a result, the order to file the aforementioned criminal investigation, together with the minutes on paper or in digital form.
 
 
Page 05
In the operative part of this order, one can read, immediately after the sentence "because there is no evidence that they have committed any crime", the express mention of article 277-1 of the CPP, through the concrete expression "in accordance with the provisions of Article 277-1 of the CPP".
 
In the light of this, it seems to the appellants that this STJ's Section can not lightly come to say in the ruling now matter of complaint, necessarily without falling (3) into a conspicuous contradiction of grounds, that the archival in question "was determined since it had not been possible for the Public Ministry to obtain sufficient evidence of the commission of crimes by the appelants (cf. Quoted article 277-2)".
Just as (this STJ's Section) could not assert that it is not acceptable to assimilate the aforementioned filing order to a verified proof of innocence, precisely because the order to which that court refers,
 
Note 3 : this is a litteral translation, but the appropriate syntax for what is meant is "sem necessariamente cair...", i.e without falling necessarily...
 
 
Page 06
as a presupposition of the conclusion it reached, does not unexist (4) uttered under article 277-2 of the CPP.
As far as the appellants are aware of, the archiving at stake was carried out, in the course of the investigation, because sufficient proof had been gathered that the then arguidos did not commit any facts of a criminal relevance and in any way whatsoever, 
this conclusion substantiating an archiving for factual reasons,
A point that should have always meant inside the decision taken by this STJ
that, in this investigation, exists the necessary certainty that the persons then arguidos did not participate objectively, subjectively and individually in its (5) practice, whether as perpetrators or only as accomplices.
On the other hand,
 
 
Note 4 : read “exists”.  La Bruyère wrote that "Whatever we conceive well we express clearly, and words flow with ease”. It seems that here things aren’t as well conceived as they should to be understandable. Double negations are traps even for grammarians. As well read "could not assert that it is not acceptable” as “could not assert that it is unthinkable”
 
 
 
Page 07
Furthermore the appellants find that the conclusion reached in the ruling under complaint is lacking factual ground concerning the fact that the alluded filing decision is liable to be amended by various means, which is done with a view to removing from the minutes the application of the presumption of innocence principle.
 
However, the archiving decision, which is proven in the minutes, produces important preclusive legal effects, which are protected by the procedural law, having the force of res judicata, as, moreover, is foreseen in the schemes established by articles 279-1, 282-3 and 449-2 of the CPP.
 
That is to say, therefore, that the filing order uttered according to article 277-1 of the CPP, after the deadline of article 278 of the  same legal compendium, is res judicata (6) and is only subject to review according to the terms of articles 279 and 449-2 of the CPP.
 
That is to say, the invalidation of the grounds invoked by the Public Ministry's office in the filing order, made under the provisions of   article 277-1 of the CPP, can only be based on new facts or elements of evidence unknown by the Public Ministry at the investigation’s time and that, therefore,
 
Note 6 : I’m not a jurist, but I know that the Public Ministry’s job is not to judge, a function that is the privilege of the judges, nobody else’s.
 
Note : read “only new pertinent elements will be able to cast doubt upon the grounds…"
 
 
Page 08
could not be presented and produced in order to be assessed and pondered in the decision.

However, inside the factual matter established as proved in the minutes, there is no fact capable of constituting ground for the review or reopening of the investigation in question, there is thus no basis for the finding advanced by the court to the effect that the principle of innocence isn’t able to be alluded to in the minutes to restrict the right to  freedom of expression, because of the, erroneous, starting assumption that the archiving of the criminal investigation "was determined by the fact that the PM had not been able to obtain sufficient evidence of the commission of crimes by the appelants". (7)

Therefore,

we request that Your Excellencies deign : (8)

a) to hear the present nullity imputation,

b) to remedy the flaws of inconsistency between the factual basis and the conclusions reached in the ruling and the flaws of failure of ground, as stated above, 
 
Note 7 : The complexity of the filing order, erroneously called the “AG Report”, is likely related to the difficult task the Public Ministry was facing. And one has to admit that the dispatch is not written as the judges of the STJ remarkably write their rulings. Mr Murat’s arguido status, twice extended, required to put an end to the criminal investigation (the status of arguidos can’t be removed before the end of that investigation phase). Furthermore the acquaintances of the MCs rejected the request of the PM to go back to PDL and participate in a reconstitution of the 3rd of May events, though it was clearly the last chance for boosting the rather stagnant criminal investigation. The filing order is therefore full of bitterness, but one has to acknowledge an important point : the prosecutors foresaw very well what would be the situation of the MCs, stuck with a decision that wasn’t, couldn’t exonerate them and anticipated the unbearable doubt that would impair their life.
 
Note 8 : Note that the complaint starts addressing to Your Excellency (singular)
 
Page 09
All with legal consequences. 
Attached is a document proving that justice fees were paid.
Notification concerning this complaint was sent to the opposite parties by email on 16.02.2017 (9)
 
Note 9 : This document was published on PJGA on March 18, about one month after it had been sent to Gonçalo Amaral. Transparency is certainly not always the right attitude to adopt, but once announced it is fair to stick to it. MF has been rightly criticized for what has now become total opacity. Transparency is therefore, like unfortunately freedom of speech is often, just wishful thinking. But after all don’t promises only bind those who believe in them ?