February 16, 2017
SUPREME COURT OF JUSTICE http://www.gerrymccannsblogs.co.uk/Annulment_request.htm
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,
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,
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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.
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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,
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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.
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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,
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| Note 3 : this is a litteral translation, but the appropriate syntax for what is meant is "sem necessariamente cair...", i.e without falling necessarily... | ||
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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, |
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| 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” | ||
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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,
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| 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…" | ||
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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, |
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| 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) | ||
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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)
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| 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 ? | ||
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