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L'imputation de nullité concerne l'arrêt de la Haute Cour de justice !
L'imputation de nullité concerne l'arrêt de la Haute Cour de justice !
PLEA OF NULLITY - 16.02.2017
Nulidade do Acordao
Nulidade do Acordao
Page 1
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 (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) Article 615 – Causes of Nullity of the Sentence
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)
Article 666 - Vices and Reform of the Ruling
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)
1 - The provisions of articles 613 to 617 are applicable to the 2nd instance, but the ruling is still null and void when it is drawn against the unsuccessful party or without the necessary salary.
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 ?)
Page 2
And
this in particular as regards the conclusive epitome on the
protection of the rights of the appellants 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.
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 3
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 (2) better examined afterwards, that
ended up appearing to be inconclusive.
(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).
Page 4
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).
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,
Page 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,
Page 7
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, therefore, that the filing order uttered according to article 277-1 of the CPP, after the deadline of article 278 (10) of the same legal compendium, is res judicata 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 (11) and that, therefore,
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 ?)
And
this in particular as regards the conclusive epitome on the
protection of the rights of the appellants 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 :
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.
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.
Page 3
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 (2) 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.
(...) (3)
, 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,
(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).
Page 4
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 5
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).
(4) Article 277 - Archiving of the investigation
1 - The Public Ministry shall, by dispatch, close the investigation, as soon as it has gathered sufficient evidence that the crime was not confirmed, that the arguido did not practice it in any way or that the procedure is legally inadmissible.
(5) This is a literal translation, but the appropriate syntax for what is meant is "sem necessariamente cair...", i.e without falling necessarily...
(6) Article 277 - Archiving of the investigation
2. The investigation shall also be closed if it had not been possible for the Public Ministry to obtain sufficient evidence confirming the crime or who were the authors.Page 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,
(7) 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”
(8) This possessive adjective lacks syntaxic representation. One can guess that it refers to the undetermined crime MMC was victim of.
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,
(9) Article 279 - Reopening of the investigation
1. Once the period referred to in the previous article has expired, the investigation may be reopened only if new evidence appears to invalidate the grounds invoked by the Public Ministry in the filing order.
Article 282 - Duration and effects of suspension
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)
Therefore,
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,
Page 9
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
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).
(10) Article 278 - Hierarchical intervention
1 - Within a period of 20 days from the date on which the opening of the investigation can no longer be requested, the immediate superior of the Public Ministry magistrate may, on his own initiative or at the request of the assistant or of the complainant capable of being constituted assistant, determine that an indictment is made or that the investigations continue, indicating, in this case, the steps to be taken and the deadline for compliance.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.
(11) Read “only new pertinent elements will be able to cast doubt upon the grounds invoked by the PM".
Page 8
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,
(12) The complexity of the filing order, erroneously known as 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 Prosecutor to go back to PDL in order to be part in a reconstitution of the 3rd of May events, though the Prosecutor clearly warned that it was the last chance for boosting the rather stagnant criminal investigation. These are the significant circumstances involving the writing of the filing order. One has to acknowledge an important point however : the Prosecutors foresaw that their constrained decision, as it couldn’t exonerate the MCs, the crime being undetermined, would reflect the “major damage done to the MCs” by the refusal of the group to collaborate with the PJ.
(13) Note that the complaint starts addressing to Your Excellency (singular)
Page 9
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
(14) This document was published on PJGA on March 18, but Gonçalo Amaral legal team is supposed to have been emailed it on February 16. The referred receipt of justice fees isn’t appended.
