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PTLW78

 

Joined: 08 Sep 2007
Posts: 18

 Posted: Tue Sep 11, 2007 9:11 pm    Post subject: Legal Update   

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Quite some interesting (legally wise, that is) developments during the last couple of days. From where I stand, two mains problem are worth discussing at this stage:

1 �?Why has the Public Prosecutor sent the file to the Judge

2 �?The Jurisdiction

1 - WHY HAS THE PUBLIC PROSECUTOR SENT THE FILE TO THE JUDGE?

According to a Portimão court clerk, the McCann file has been received by the Public Prosecutor (from the PJ) and sent to a judge �?a JUIZ DE INSTRUÇÃO - shortly thereafter.

------- Side Note - There are two types of judges in a criminal procedure: the JUIZ DE INSTRUÇÃO and the JUIZ DA CAUSA.

The JUIZ DA CAUSA is the one that judges the case in the court. He/she is the judge before whom the prosecution and the defence present their arguments and evidence during the trial. He/she is the one who will decide if the defendant is guilty and, if so, which penalty will be applicable.

It’s a bit difficult to find a translation to JUIZ DE INSTRUÇÃO. You can call it the Investigation Judge. The JUIZ DE INSTRUÇÃO controls the mechanisms used by the police and the Public Prosecutor during the investigation. He/she makes sure that the investigation is made in accordance with the law. For that, certain investigations acts �?for example, interception of phone calls �?can only be performed if authorized by the JUIZ DE INSTRUÇÃO.

According to the Code of Criminal Procedure, the judge acting as JUIZ DE INSTRUÇÃO cannot subsequently be the JUIZ DA CAUSA (section 40 of the Code of Criminal Procedure). It is understandable so: the judge involved in the control of the investigation has a deep knowledge of the investigation acts and an opinion on the culpability of the suspect. He would be biased to judge the case. Hence, there must be different judges (this principle has some exceptions and nuances, but there is no need to go into that much detail) -------------------------------------------

Well, we know that the file has been sent to the JUIZ DE INSTRUÇÃO. As we are currently still in the investigation phase, the fact that the Public Prosecutor has sent the file to the judge can mean one of two things:

a) The Public Prosecutor (or the PJ, which is in the hierarchic dependence of the Public Prosecutor) wishes to carry out an investigation act that needs to be authorized by the judge �?for example, to confiscate an object in the possession of the suspects, to apprehend the suspect’s correspondence, etc (cfr. section 268 of the Code of Criminal Procedure).

b) The Public Prosecutor feels that the interim measure that has been imposed on the suspects (a TIR �?formal record of name and address) is not sufficient and wishes to apply a stronger measure (for example, bail, take the suspects into custody, etc). As I wrote in other post, these stronger interim measures must be ordered by a judge.

It flows from the above that the events of today in no way mean that the case is closed and ready to be presented to a JUIZ DA CAUSA �?that is, to the one that judges the case in a court of law. What it means is that in light of the facts put together by the PJ, the Public Prosecutor feels that a) it needs to carry out more investigation acts which must be authorized by a judge (JUIZ DE INSTRUÇÃO) or b) that it feels that the measure applied to the suspects is not enough and that a stronger measure is required.

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2 �?JURISDICTION

If the suspects were in Portugal, the upcoming investigations and legal acts would be very straightforward and no special problems would arise. Fact is that the suspects are now in England �?their country of origin -, which means that any act from now on must always be mediated by the British authorities. In other words: British authorities have now a strong influence in the legal conduction of the case.

Let me give you a pathetic, but rather illustrative example: let’s imagine that, in Portugal, it was a crime to wear red shirts. And that a British citizen on holiday in the Algarve is formally charged with the crime of wearing red shirts. Returning to England, the British Authorities are summoned by the Portuguese authorities to hand over the suspect so that he can serve 5 years in jail for having worn a red shirt in Portuguese territory. British authorities would of course refuse to do so, on the basis of human rights and principles of justice and reasonability and the Portuguese courts would not be able to enforce Portuguese law.

The above example is absurd, but it goes to show that the British authorities have now a very important role to play during the next stages of this case. Ultimately, British authorities will decide:

a) If the suspects are to be handed over to the Portuguese authorities (as per the European Arrest Warrant that has already been explained in this forum) �?should that be requested by the Portuguese;

b) If the next investigation acts are to be performed in England (for example, the PJ sends additional queries to be made to the suspects, with the questioning being made in England by British polices and the answers sent back to Portugal); or

c) If British courts will claim jurisdiction over the case.

In my opinion, this scenario c) is quite plausible. A crime has usually 3 connection elements: the suspect, the victim and the place where the crime is committed. In the case in hand, two of the three connections elements �?the suspects and the victim �?are British, with Portugal merely “providing�?the venue. If it was the other way around �?a Portuguese citizen suspect of committing a crime against other Portuguese citizen in England (or other foreign country) �?Portuguese law would seek to apply, as per section 5 of the Penal Code.

The extent to which British law and jurisdictions will seek to apply depends, of course, on the provisions of British law. I would be very interested in learning the particulars of the British legal system in this regard.

I finalize by reiterating the principle in the Portuguese Constitution, Penal Code and Code of Criminal Procedure that Mr. and Ms. McCann have not been convicted by a court of law and are shall therefore be deemed innocent until (and IF) proven guilty.
 
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mexx

 

Joined: 16 Aug 2007
Posts: 1155

 Posted: Tue Sep 11, 2007 9:16 pm    Post subject:    

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Thank you very much indeed for clarification.

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ChrisC

 

Joined: 14 Aug 2007
Posts: 8

 Posted: Tue Sep 11, 2007 9:19 pm    Post subject:    

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Thanks so much for your incredibly informative posts and the time you put in to explaining everything for us.

Very much appreciated 
 
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idontknow

 

Joined: 22 Jul 2007
Posts: 735

 Posted: Tue Sep 11, 2007 9:20 pm    Post subject:    

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Thankyou PTLW78

Very interesting
_________________
The British Media stinks!
 
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not50sure

 

Joined: 29 Aug 2007
Posts: 51

 Posted: Tue Sep 11, 2007 9:21 pm    Post subject:    

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Thanks for that. Its good to get reliable information from the horses mouth. Keep it up (wish I could say that in Portuguese, will muchas gracias do?)
 
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gerdy

 

Joined: 18 Aug 2007
Posts: 103

 Posted: Tue Sep 11, 2007 9:27 pm    Post subject:    

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An excellent post. Thank you.
 
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lovejust

 

Joined: 13 Aug 2007
Posts: 237

 Posted: Tue Sep 11, 2007 9:40 pm    Post subject:    

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Thank you so much, PTLW78. All your work is really appreciated.
 
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Cassi

 

Joined: 14 Aug 2007
Posts: 1089

 Posted: Tue Sep 11, 2007 9:43 pm    Post subject:    

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[quote="lovejust"]Thank you so much, PTLW78. All your work is really appreciated.[/quote]

Ditto!
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~If only the McCann's had looked after Madeleine as much as they do Cuddle Cat, then maybe Madeleine would still be safe, living the life of a carefree child.~
 
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Ducko

 

Joined: 30 Jul 2007
Posts: 379

 Posted: Tue Sep 11, 2007 9:44 pm    Post subject:    

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Thank you PTLW78.

I have a question for you, and wondered if you might be so kind to answer.

If the body is found during a muder inquiry where the parents are suspects would the PJ be obliged to reveal the finding immediately to the next of kin?
 
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fruity

 

Joined: 08 Sep 2007
Posts: 42

 Posted: Tue Sep 11, 2007 9:46 pm    Post subject:    

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Thank god you have explained all that .. when I saw that on the news my first thought was that they must need a second opinion...!!

 

 
 
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chox

 

Joined: 15 May 2007
Posts: 842

 Posted: Tue Sep 11, 2007 9:48 pm    Post subject:    

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bump and thank you.
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Free bananas and lice-removal service for all chimps! 
 
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bnq123

 

Joined: 27 Jun 2007
Posts: 484

 Posted: Tue Sep 11, 2007 9:50 pm    Post subject:    

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Thanks very much PTLW78!

I found it strange that PJ has already submitted the case to the judge as I thought there are still people to interview, evidence to analyse.

After your explanation I understand why it is now.

Thanks again!
_________________
Don't feed the troll

The McCanns are greedy beggars
 
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IrishEyes

 

Joined: 06 Sep 2007
Posts: 26

 Posted: Tue Sep 11, 2007 9:51 pm    Post subject:    

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If I understand this correctly, these people may never have to return to Portugal.
I want them back there now.
 
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arclight

 

Joined: 26 Jun 2007
Posts: 300

 Posted: Tue Sep 11, 2007 10:02 pm    Post subject:    

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PTLW78

Murder and Manslaughter are among the exceptional cases where the English courts have jurisdiction over offences committed abroad.

s.9 Offences Against the Person Act 1861 and s.3 British Nationality Act 1948.
 
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chalice

 

Joined: 23 Aug 2007
Posts: 204

 Posted: Tue Sep 11, 2007 10:06 pm    Post subject:    

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I may have this wrong but I think that the standard for forensic reliability in UK courts is a little lower than in Portugal.
There was mention of a DNA match of 10/20 being seen as sufficient here but Portugal needing 16-18/20 ?
 
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