Nulidade do Acordao
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 (1) , 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,
1 – The sentence is null when :
b) It does not specify the factual and legal grounds that justify the decision.
c) The grounds are in opposition to the decision or there is some ambiguity or obscurity that turns the decision unintelligible.
4 - The nullities mentioned in points b) to e) of paragraph 1 can only be argued before the court that delivered the sentence if this one does not admit ordinary appeal, and if it does the appeal can be based on any of these nullities.
(there is no 615-4,1)
2 - The rectification or amendment of the judgment, as well as the plea of nullity, shall be decided in a conference.
(pertinence of 666-1 ?)
It is established in the minutes, under point 15 of the factual matter, that, in particular :
It appears that the non involvement of the parents, arguidos (formal suspects), 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.
(2) The email on the preliminary DNA analysis by the FSS of the samples collected in the car hired by the MCs.
(3) (...) is substituted to "In spite of all this" in the original document (the filing order).
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.
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 (Code of Penal Procedure) (4), 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 (5) 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 appellants (cf. quoted article 277-2)" (6).
as a presupposition of the conclusion it reached, does not unexist (7) 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 (8) practice, whether as perpetrators or only as accomplices.
On the other hand,
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. (9)
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 (11) and that, therefore,
3 - If the arguido complies with the injunctions and rules of behaviour, the Public Ministry closes the processs that cannot be reopened.
Article 449 - Reasons and admissibility of the review
2 - For the purpose of the provisions of the preceding paragraph, the dispatch terminating the process shall be equated with the sentence (made res judicata).
2 - The assistant and the complainant able to become an assistant may, if they choose not to request the opening of the instruction, raise the hierarchical intervention, under the previous number, within the period provided for that request.
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 appellants". (12)
we request that Your Excellencies deign : (13)
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,
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 (14)
Signé Dr Ricardo Correia Afonso