Lettre rogatoire - 12.12.2007 (2)
III - À l'attention des opérateurs de téléphonie mobile :
* Demande d'identification complète des propriétaires de certains numéros.
(Listed here, are 44
telephone numbers to be identified)* Demande d'identification complète des propriétaires de certains numéros.
* as well as a list of
the incoming and outgoing calls, including the SMS and MMS messages
relating to the above referred telephone numbers, between 2nd May,
2007, 00.00.00 and 5th May, 2007, 00.00.00
After receiving and
analysing the requested information above, please interview the
users of the aforementioned identified telephone numbers at the
period of time referred to above. That should be asked the following
questions :
* Do you know the MC family ? What kind of relationship do you have with them ?
* Are you a friend or an
acquaintance of the other elements of the group ?
*Did you receive or make
any telephone calls, or receive or send SMS or MMS messages from or
to any of those 9 persons between 2nd May, 2007, and 5th May, 2007 ?
* What were the topics
you talked about in those calls ?
* Did anyone, in any way,
inform you of a missing child ? When and who informed you ? As
regards this particular information, what did you do ? Did you
contact the Media ?
* Any other relevant questions related to the ones previously replied.
* Is there any further supplementary explanations that you consider pertinent or relevant to establish the material truth ?
* Any other relevant questions related to the ones previously replied.
* Is there any further supplementary explanations that you consider pertinent or relevant to establish the material truth ?
IV - Interview to Patricia Cameron - to be identified by the Requested
Authority. She used the "Renault" vehicle, model "Scenic",
number plate 59-DA-27 during the time it was rented to the arguidos
(formal suspects). She should be asked the following questions :
* Have you ever driven
this vehicle ?
* Who was with you ?
* When and where exactly
did you drive to ?
* Do you have anything to
report that you would describe as unusual when you drove the vehicle
or travelled in it ?
* As far as you know,
have the twins ever travelled in the vehicle ?
* Any further questions
deemed useful, necessary or pertinent in view of the previous
replies.
* Is there any further
supplementary explanations that you consider pertinent or relevant to
establish the material truth ?
Lire l'entretien rogatoire de PC ici.
V - Interview to the
additional drivers indicated by GMC on the rental contract
for the vehicle Renault Scenic, 59-DA-27, as hereinafter identified.
* Michael Terence Wright, Skipton,
* Alexander James Cameron, Dumbarton
They should be asked the
following questions :
* Do you know the MC
family ? If yes, what relationship do you have with them ?
* Why are you indicated
on the rental contract as additional driver for the vehicle Renault
Scenic rented by GMC ?
* Did you ever drive this
vehicle ? Who was with you ? When and where exactly did you drive to
?
* As far as you know,
have the twins ever travelled in the vehicle ?
* Any further questions
deemed useful, necessary or pertinent in view of the previous
replies.
* Is there any further
supplementary explanations that you consider pertinent or relevant to
establish the material truth ?
VI - Interview to the
below identified individuals that had rented the Renault Scenic
vehicle, number plate 59-DA-27 before GMC (liste)
The aforementioned
individuals should be asked as follows :
* Do you confirm having
rented this vehicle ? Under what circumstances did you rent it ?
* Can you remember the
date on which you signed the contract ?
* Are you acquainted with
the MC family ? If yes, what sort of relationship do you have
with them ?
* Have you ever
transported anyone dying or wounded, namely ble*ding ?
* Any further questions
deemed useful, necessary or pertinent in view of the previous
replies.
VII - Interview
to the adult users of the apartment G5A from which MMC went
missing, who stayed there before 28th April (the date on which the MCs
arrived there). They should be subject to a bucal swab and
hair sample collection (liste) :
The aforementioned
persons should be asked the following questions :
* Did any incident happen
during your stay at the apartment, i.e. was anyone injured or did
anyone die ?
* Did you ever suffer
theft or did any of your belongings disappear from the apartment ?
* Did you ever detect the
presence of anyone strange inside or around your apartment ?
* Did the windows, as
well as the doors and shutters close well ? Did you at any time
detect whether any of these accesses to your apartment had been
broken in ?
* How did you usually go
into your apartment ?
* Was the sofa in the
living-room - on the right side after entering through the patio door
- leaning against the wall or a little away from it ? If it was away
from the wall, how far ?
* Do you have any
children ? Did you take them to Portugal with you ? Where did you and
your children sleep?
* Where did you usually
take your meals, i.e. breakfast, lunch and dinner ?
* Did you ever leave your
children alone ?
* Did you use the "Kids
Club" service ?
* Did you detect anything
worth mentioning during your stay ?
* Any further questions
deemed useful, necessary or pertinent in view of the previous
replies.
VIIIa - Interview to Neil Berry, Surrey. He should be subject to
a bucal swab and hair sample collection and asked the following
questions :
* Do you confirm your
previous statements to the British Police ?
* Could you provide a
thorough description regarding everything you did on 3rd May, 2007?
Indicate time and place.
* Where did you have your
meals and with whom ?
*Where were you on this
day between 8.30 p.m. and 10.00 p.m. ?
* At about 6.00 p.m., in
particular, where were you ? Who were you with ?
* Considering the fact
that you were seen by a witness, clarify what you were doing at that
time next to the stairs leading to the upper floor , which are
located next to the lift of Block 5 at the Ocean Club, i.e. not far
from the apartment from where MMC went missing ?
* On that occasion, did
you actually pass by an Ocean Club employee that went there to pick
up laundry ?
* If yes, what was the
reaction like and why ?
* Do you know a man
identified as Rajinder Balu ? Who is he ? From where do you know him
? Did you travel together to Portugal ? Did RB travel
together with his family ?
* Explain clearly all
your actions on that day between 6.00 p.m. and 11.00 p.m., namely
with whom did you go to the Tapas Restaurant to get food, and the
kind of food you ordered, as well as the direction you took to go to
the place where you ate.
* When exactly did you
realise that a child was missing ? Where were you then and who were
you with ?
* Any further questions
deemed useful, necessary or pertinent in view of the previous
replies.
* Is there any
supplementary explanation that you consider pertinent or relevant to
establish the material truth ?
VIII b - Interview to Rajinder Raj Balu, Brentwood. He should be asked the following questions :
* Do you confirm your
previous statements to the British Police ?
* What did you do on 3rd
May, 2007, between 6.00 p.m. and 11.00 p.m. ?
* How did you get to know
that a child was missing ?
* Did you take part in
the searches ? Where and with whom did you look for the missing girl?
* Do you know a man
identified as Neil Berry ? Who is he ? How did you know him ? Did you
travel together to Portugal ? Did he travel to Portugal with his
family ?
* State clearly who went
to buy the food at the Tapas Restaurant, what food was it and the way
taken.
* Any further questions
deemed useful, necessary or pertinent in view of the previous
replies.
* Is there any
supplementary explanation that you consider pertinent or relevant to
establish the material truth ?
IX - Interviews to MARK
HARRISON and MARTIN GRIME
who were in charge of the searches
undertaken by the specialist dogs, and who shall be notified by the
Requested Authority.
Martin Grime should be
asked the following questions :
* Could you explain the
methodology regarding the performance of the dogs in the scope of the
undertaken searches ?
* Could you provide a
thorough description of the dogs' skill and orientation, as well as
an interpretation of the dogs' indications in the specific cases ?
* Aiming at determining
the reliability of the canine performance, in what concerns the
alerts given to blood scent and to dead body scent, how reliable are
those indications in this particular case ?
* From the behaviour of
the dogs, is it possible to distinguish between a strong alert and a
soft alert ?
* Can you say whether the
indication given to the cuddly toy corresponds to a concrete alert to
dead body scent or to a mere dog playing trick ?
* In what concerns the
cadaver scent on KMC's clothing, could it be undoubtedly stated that
those clothes had been in contact with a dead body ? Or could the
alert have been given even if those clothes had been in contact with
other pieces of clothing, surfaces or items which could have had
previously touched a dead body, thus allowing for secent transfer ?
* Does the EVRD dog (
dead body scent dog) also alert to blood traces coming from a living
person or from a dead body ?
* In what concerns the
indications given by the CSI dog ( human blood detecting dog), can
this dog alert to other biological fluids ? Isn't there a chance,
even a tiny one, of some confusion
* How long does a cadaver
need to be in contact with a surface or an item, so that the scent
can be indicated ?
* How farther can a blood
trace date back in time, so that the CSI dog gives an indication ?
* Can the dogs mix up
scents from human and non-human traces ?
* From your experience as
a dog Handler, can you specify whether the dog's positive indications
have always been corroborated by positive scientific results ?
* Did Gerald McCann ask
you, at any time, in Portugal, or in the United Kingdom, any
questions about the performance of the dogs in this case ?
* Any further questions
deemed useful, necessary or pertinent in view of the previous
replies.
Lire la déposition rogatoire de MG ici.
Mark Harrison should be
asked the following questions :
* What criteria led to
the selection of the places to be searched ?
* How were the searches
carried out ?
* Considering the
geological conditions of Praia da Luz, where would it be more likely
to conceal a dead body ?
* In this particular
case, based on the known information and in your experience, what is
the probability for a body concealment to have occurred ?
* Any further questions
deemed useful, necessary or pertinent in view of the previous
replies.
Lire la déposition rogatoire de MH ici.
X - Interview to Jeremy Wilkins, London, who shall clarify the
following :
* What time did you meet
GMC ?
* Where was he coming
from ?
* Where exactly did you
meet him (provide directions or sketch) ? How were both of you
positioned? How did you position yourself ? With your back turned to
Block G5 (where McCann's apartment is located) or, contrariwise,
facing the referred building ?
* For how long were you
talking to each other ?
* Were you facing each
other ? Or was GMC beside you ?
* Did you see anyone else
besides GMC ?
*Do you know Jane Tanner
? Did you see her when you were talking to GMC ?
* Could someone have
passed by GMC and you without your notice ?
* Did you detect anything
strange in GMC's behaviour ?
* During your
conversation, did you see anybody ? Did you hear footsteps ? Did you
see or hear any vehicles circulating ? Did you hear any sound that
resembled a shutter opening or the slam of a car or a house door ?
* Were the
visibility/light conditions good ? Considering those conditions,
would you find it possible to describe a man in detail ?
* The witness should be
expressly asked about his availability to come to Portugal, on a date
yet to be set (as soon as possible), in order to re-enact the events
occurred on 3rd May, 2007, between 5.30 p.m. and 11.00 p.m. at the
Ocean Club, with sound and image recording. This should be requested
to him during the interview.
* Any further questions
deemed useful, necessary or pertinent in view of the previous
replies.
* And also (questions
drawn up by the arguidos (formal suspects).
* When did you get
acquainted with the MCs between 28th April and
3rd May ?
* How often did you use
to meet them between 28th April and 3rd May ?
* Did you see them with MMC and their two other children ? What was the children's
behaviour like?
* Did you see any of them
inside a car ?
* Did you see the MCs on Thursday, 3rd May ? Where ? At what time ? How were they
behaving ?
* When did you know that
Madeleine had gone missing ? Did you take part in the searches ? Did
you see the MCs after it was noticed that Madeleine was
missing ? When ?
* How did they react ?
* What time did you meet GMC on Thursday, 3rd May ?
* Where exactly were you
standing ? Did you see where GMC had been ?
* Did you see him leaving
the apartment ?
* Did you notice anything
strange ?
* What did you speak
about ? Did he mention anything about going to check on the children?
* For how long were you
talking to each other ? Are you sure about the time and about how
long the conversation went on ?
* While you were having
this conversation, did you notice anyone else around ? If yes, when
and where ?
* Did you see Jane Tanner
?
* From the place you were
talking to GMC could you see the street - Rua Dr. Francisco Gentil
- on top of the hill ?
* Is there any
supplementary explanation that you consider pertinent or relevant to
establish the material truth ?
Lire l'entretien rogatoire de JW ici.
XI - Interview to the Tapas Restaurant employee, Jeronimo Rodrigues Salcedas, Swindon, who was on evening duty on 3rd May. The witness should be asked the following questions :
* Who alerted to the disappearing of MMC ? How was that alert given ?
* What time was the alert given ?
* How did you act ?
* Did you take part in the searches ? With whom ?
* Who decided to call the Law Enforcement Authorities ?
* After the alarm to the disappearing had been raised, did anyone remain at the table ?
* Had you seen the missing child before ? If yes, did she look normal to you, or did you notice any sort of inadequate behaviour for a child of her age ?
* How would you describe the group of 9 adults ?
* How would you describe the group's drinking habits ?
* Any further questions deemed useful, necessary or pertinent in view of the previous replies.
Lire l'entretien rogatoire de JS ici.
XII - Interview to MMC's babysitters and Nursery School Teachers, to be
identified by the Requested Authority. They should be asked the
following questions:
* What kind of
relationship do you have with the child and with her relatives ?
* How long have you known MMC ? And how often did you use to meet ?
* What is the child and
her parents' character and personality ?
* Are you aware of any
problems/conflicts between MMC and her parents, family, friends
or children of her age ?
* In a general way, how
was MMC's health ? Would you consider her to be a
healthy child ? Do you remember something you consider worth
mentioning, such as changes in the child's behaviour, haemorrhages or
apathy ?
* Did MMC
ever complain about her parents, family or friends ? Did you ever
notice fear or anxiety in an obvious way ? If yes, why ?
* Is she a hyperactive
child ?
* Did she seem to have
sleeping problems ?
* Did her parents ever
mention any problems she had ? Was it difficult for them to handle
her ? Did they seem tired, possibly due to the fact that she was a
very active child ?
* Do you know if she was
taking any kind of medication ? Was she ever given anymedicine?Did
her parents use to give her medication ? What sort, to what end and
how often ?
* Did MMC have a
normal behaviour for her age ?
* Any further questions
deemed useful, necessary or pertinent in view of the previous
replies.
* Is there any
supplementary explanation that you consider pertinent or relevant to
establish the material truth ?
XIII. Interview to the housemaid(s) of the MC family, to be identified by the Requested
Authority. They should be asked the following questions:
* How long do you know
and work for the family ?
* What are your duties
and how often do you accomplish them ?
* Did you know MMC ? How often did you use to meet her and in what circumstances
?
* What is the child's
relationship with her parents and her family ?
* How is the child's
character ? Is she hyperactive ?
* Does she have sleeping
problems ? Did you ever see her ble*ding, other than by traumatic
effect ?
* Did you ever see the
"naughty board" where her parents used to mark the child's
behaviour? What's on that board ?
* Did you see anything
you consider unusual and worth mentioning ?
* Did MMC have a
normal behaviour for her age ?
* Any further questions
deemed useful, necessary or pertinent in view of the previous
replies.
* Is there any
supplementary explanation that you consider pertinent or relevant to
establish the material truth ?
XIX - Interview to the Police Liaison Officers to MC family, to be identified by the Requested Authority. They should be asked the following questions :
* Did you actually go to
Portugal when MMC disappeared ?
* Who ordered you to go ?
* With what purpose ?
* Was there anything said
or done by KMC or GMC in your presence or during any
contact with them that raised any suspicion that they had any
knowledge of what had happened to MMC other than that of the
circumstances described to this Portuguese Investigation ?)
* Any further questions
deemed useful, necessary or pertinent in view of the previous
replies.
* Is there any
supplementary explanation that you consider pertinent or relevant to
establish the material truth ?
Ce questionnaire mérite que l'on s'y arrête. En effet, il a été corrigé... Un post-it a été placé de telle manière que l'on voit qu'il s'agit d'une substitution. Heureusement, il y a dans les PJFiles l'original portugais de cette lettre rogatoire, il suffit de s'y référer et de traduire pour savoir quelles questions ont été rejetées par Stuart Prior. On sait en effet que la substitution a été effectuée à sa demande (voir addendum en bas de page).
Do you confirm that you were an officer of the British Police in charge of liaison with the MC family ?
What happened during the mission you were in charge of ?
Was there any incident with Kate or Gerald MC to bring to attention ?
In case of positive answer, what happened ? What was the motive ? What consequences it had ?
At any time did Gerald MC refer to the possibility that the children had been sedated and did he suggest to proceed with toxicological tests on the twins ?
Il est étonnant qu'un document officiel n'ait pas été corrigé selon la norme (ressalva, autrement un appel de note à l'endroit où une correction est intervenue, correction rédigée en marge), mais simplement en appliquant un post-it sur le document. On sait qui a demandé que le questionnaire soit modifié, mais on ne sait pourquoi. Les spéculations sont donc ouvertes. Voir ici.
Voir la déposition du PO Stephen Markley et celle du PI Jim McGarvey.
Aucun des FLO n'ont indiqué la date de leur arrivée et celle de leur départ. Pourquoi ?
XV - Interview to the witness Carole Anne Trammer, niece of Pamela Fenn who lives in the apartment above the one used by the MC family, to be identified by the Requested Authority. She should be asked the following questions :
* Do you confirm your
Statements, taken by the British Police in the United Kingdom, on 8th
May, 2007 ?
* On what day, in what
place and at what time did you see an individual nearby the apartment
from where MMC disappeared (please locate it on a map or
sketch it) ?
* Where were you at the
time you saw that person ? Did anyone else see him too ?
* How would you describe
him ? How was he dressed ?
* What were his actions ?
At what point were you no longer able to see him ?
* What was his behaviour
like ? Where was he looking at and how was he doing it ?
* Do you recognise him in
the photo-fit made by the witness Tasmin Silence, which is enclosed
to the Letter of Request ?
* Any further questions
deemed useful, necessary or pertinent in view of the previous
replies.
Demandes à l'entité forensique compétente
XVI - A detailed report on the social/economic/professional context of the arguidos (formal suspects) Gerald MC and Kate Healy, as well as their Legal Records. A fait l'objet d'une correction de Stuart Prior, voir Addendum en bas de page.
XVII - MMC's dental records.
XVIII - Original copies of the examinations made by the FSS (Forensic Science Service), as well as the proceedings that led to the conclusions obtained, along with the answers to the queries on the Official Letter requesting Forensic Examinations, which, in the meantime, has already been sent by e-mail to the FSS.
XIX - Complementary request, in the scope of the above-mentioned Official Letter, to compare all the profiles obtained in the tests already carried out, with those in the British National Database.
XX - Comparison of all the obtained profiles with MMC's reliable reference samples (demonstrated to belong to her ).
XXI - The respective telephone network operating companies to supply the complete identification of the owners of the following telephone numbers :
004413955XXXXX,
004478879XXXXX, 004479226XXXXX, 004413924XXXXX, 004419267XXXXX, which
refer to telephone contacts made by the arguido (formal suspect)
RM.
XXII - Transactions regarding the Mastercard Credit Cards, numbers 54355690018XXXXX and 54355690011XXXXX, used by GMC in the time period between 1st April, 2007, and 30th September, 2007. A fait l'objet d'une correction demandée par Stuart Prior. Voir addendum en bas de page.
Considering the utmost
urgency, since the investigation terms are expiring, and with a view
to cooperate, on site, with the British Authorities, we suggest that
the above-mentioned investigations be carried out in the presence of
Polícia Judiciária's Officers. The cooperation request
is confidential for the following reasons :
The enquiry is under
Judicial Secrecy.
Applied Conventions : European Convention on
Mutual Assistance in Criminal Matters, 20th April, 1959.
Convention on Legal
Assistance in Criminal Matters between the Member States of the
European Union, 29th May, 2000.
Bilateral Conventions.
Enclosures :
I - (Certified copy of
the following Sections) :1. Sections 131, 132, 135,172,182, 187, 188, 189 and 269 of the Portuguese Code of Criminal Procedure.
2. Sections 131,138,161 and 254, Subsection 1, paragraph, a) of the Portuguese Criminal Code.
II - Certified copy of the Judicial Order.
Yours faithfully,
Portimão,
The Public Prosecutor,
José de Magalhães e Menezes
Voir les questions supplémentaires pour certains témoins ici.
Extraits du CPP
Section 131
Whoever kills another person shall be punished with imprisonment from 8 up to 16 years
Section 138
Exposure or Abandonment
1. Whoever endangers the life of another person :
a) exposing him/her in a place that subjects him/her to a situation from which he/she cannot defend himself/herself on his/her own : or
b) abandoning him/her, defenceless, whenever the perpetrator had the duty to watch, keep vigilance over or assist him/her, shall be punished with imprisonment from 1 up to 5 years.
2. If the fact is committed by an ascendant, a descendant, an adoptive parent or an adopter of the victim, the perpetrator shall be punished with imprisonment from 2 up to 5 years.
3. If the fact results in :
a) a serious assault on physical integrity, the perpetrator shall be punished with imprisonment from 2 up to 8 years.
b) death, the perpetrator shall be punished with imprisonment from 3 up to 10 years.
Section 161
Abduction
1. Whoever abducts another person by means of violence, threat or artifice in order to ;
a) submit the victim to extortion ;
b) commit an offence against the victim's freedom and sexual self-determination ;
c) obtain a ransom or reward ; or
d) force the Public Authorities or a third party into committing an act or omission, or into supporting an activity ;
shall be punished with imprisonment from 2 up to 8 years.
2. Whenever the situations provided for :
a) in subsection 2 of Section 158 apply, the perpetrator shall be punished with imprisonment from 3 up to 15 years ;.
b) in subsection of 3 of Section 158 apply, the perpetrator shall be punished with imprisonment from 8 up to 16 years.
3. Whenever the perpetrator voluntarily renounces to his/her goal by releasing the victim, or seriously endeavours to achieve this, the punishment may be particularly mitigated.
Section 254
Profaning a corpse or a burial ground
1. Whoever :
a) without the entitled person's consent, removes, destroys or conceals a corpse or part of it, or the ashes of a deceased person ;
shall be punished with imprisonment up to 2 years or with a Fine, up to 240 days.
2. The attempt is punishable
Section 131
Ability and duty to testify
1. Any person who is not banned due to mental illness has the ability to be a witness and may decline only when provided for by Law.
2. The Judicial or Prosecuting Authority checks the physical or mental ability of any person to give Testimony, whenever this is required to assess his/her credibility, and without causing any delay to the normal course of the proceedings.
3. In case of a Testimony given by a minor under 18 concerning an offence against the freedom and sexual self-determination of minors, a personality assessment may be conducted.
4. The inquiries referred to in the previous subsections, and ordered prior to the Testimony, do not prevent it from being given.
Section 132
General duties of the witness
1. Unless otherwise provided for by Law, the witness shall be bound to the following duties:
a) To appear in due time and place before the Authority by whom he/she was Legally summoned or subpoenaed, keeping himself/herself at the disposal of that Authority until excused ;
b) To take an Oath when questioned by a Judicial or Prosecuting Authority ;
c) To obey to Legally given instructions on how to Testify ;
d) To tell the truth when questioned ;
2. The witness shall not be bound to answer when alleging that self-incrimination may result from his/her answers.
3. In order to receive summons, the witness may state his/her residence, office address or any other domicile of his/her own choice.
4. Whenever the witness must give Testimony, even in the course of an act that is barred to the public, his/her Lawyer may be present, thus informing hi/her, whenever deemed necessary, of the rights he/she is entitled to, without intervening in the examination.
5. No Lawyer acting as defence counsel for a formal suspect in the proceedings may be present with the witness under the provision set forth in the previous subsection.
Section 135
Professional secrecy
1. Members of the Clergy, Lawyers, Doctors, Journalists, members of credit institutions and any other persons whom the Law allows or imposes professional secrecy, may be excused from giving Testimony on facts falling within it.
2. If there ate reasonable doubts about the legitimacy of the excuse, the Judicial or Prosecuting Authority before which it occurred will carry out the necessary inquiries.
Should the Judicial or Prosecuting Authority, as a result, come to the conclusion that the excuse is not legitimate, it shall then instruct, or request the Court to order that the Testimony be given.
3. The Court superior to the one where the incident arose or, in case the incident arose in the Supreme Court, the plenary meeting of it's Criminal Section may decide that Testimony be given with breach of professional secrecy whenever there is reasonable ground for it, according to the principle that the preponderant interest prevails, namely considering that Testimony is essential to discover the truth, the seriouness of the offence and the need for protection of rights. The intervention is initiated by the Judge, ex-Officio or upon request.
4. In the cases set forth in subsection 2 and 3, the decision of the Judicial or Prosecuting Authority or that of the Court is taken after hearing the representative body related with the profession the secrecy of which is at issue, under the terms and with the efforts provided for in the Legislation applying to that body.
5. The provisions in subsection 3 and 4 do not apply to religious secrecy.
Section 172
Undergoing an examination
1. Whenever a person attempts to avoid or hinder any due examination or providing any object to be examined, he/she may be compelled to do so by decision of the competent Judicial or Prosecuting Authority.
2. The provisions of subsection 2 of Section 154 and of subsection 5 and 6 of Section 156 apply accordingly.
3. Any examinations that are liable to offend a person's modesty must respect the dignity and, as far as possible, the modesty of the person undergoing them. The examination is exclusively attended by the person performing it and by the competent Judicial or Prosecuting Authority, the person to be examined may be accompanied by a person he/she relies on, if no danger arises from a delay, and he/she must be informed of this possibility.
Section 182
Professional or Official Secrecy and Secrecy of State
1. When ordered to do so by the Judicial or Prosecuting Authority, the persons mentioned in Sections 135 to 137 present it with the Documente and any Objects in their possession that must be seized, except when invoking, in writing, professional or Official Secrecy, or Secrecy of State.
2. Whenever refusal is based on professional or Official Secrecy, the provisions of subsection 2 and 3 of Section 135 and those of subsection 2 of Section 136 apply accordingly.
3. Whenever refusal is based on Secrecy of State, the provisions of subsection 3 of Section 137 apply accordingly.
Section 187
Admissibility
1. Intercepting or recording telephone conversations or communications can only be Authorized at the stage of inquiry, whenever there are reasons to believe that this measure is essential to discover the truth, or because evidence would otherwise be impossible or very difficult to obtain, under a substantiated order of an investigating Judge and upon a request submitted by the Prosecution Service, with regard to the following offences :
a) Offences punishabloe with a maximum imprisonment term exceeding 3 years.
4. Irrespective of the holder of the communication means used, interception or recording as provided for in the previous subsections can only be Authorized regarding :
a) a suspect whether formal or not ;
b) any person serving as an intermediary, about whom there are reasonable grounds to believe he/she receives or transmits messages aimed at or coming from a suspect, whether formal or not.
Section 188
Operation-related formalities
1. The Criminal Police body carrying out the interception and recording as referred to in the previous Section draws up the corresponding report and a statement outlining the passages that are relevant as evidence, offers a brief description of the contents therein and explains their significance for discovering the truth.
2. The provisions set out in the previous subsection shall not prevent the Criminal Police body carrying out the investigation from previously taking knowledge of the contents of the intercepted communication, so as to be able to take the necessary precautionary and urgent measures in order to safeguard evidence.
3. The Criminal Police body referred to in subsection 1 informs the Prosecution Service every 2 weeks as from the beginning of the first interception carried out in the proceedings of the corresponding technical equipment, as well as of the respective reports and statements.
4. The Prosecution Service informs the Judge of the elements referred to in the previous subsection at the latest within a period of 2 days.
5. In order to take knowledge of the contents of the conversation or communications, the Judge is assisted, whenever deemed convenient, by a Criminal Police body, and appoints an interpreter, if necessary.
6. Subject to the provisions set forth in subsection 7 of the previous Section, the Judge determines that any technical equipment and statements clearly unrelated to the proceedings be immediately destroyed :
a) whenever they concern conversations in which none of the persons referred to in subsection 4 of the previous Section intervene ;
b) whenever they include information covered by professional or Official Secrecy, or by Secrecy of State ; or
c) whenever their disclosure may cause serious harm to any rights, freedoms and guarantees, all intervening parties shall be bound by secrecy with regard to the conversations that have come to their knowledge.
7. During the inquiry, and upon request of the Prosecution Service, the Judge determines that any conversations and communications essential to substantiate the application of coercive or property guarantee measures, except for the statement of identity and residence, be transcribed and added to the case file.
8. As soon as the inquiry is closed, the Prosecuting party and the Defendant may examine the technical equipment regarding the conversations and communications, and they may obtain at their expense, copies of the Sections they wish to transcribe and add to the case files, as well as copies of the statements referred to in subsection 1, until the limitation period established either for requesting the opening of the investigation, by the investigating Judge or for submitting the defence has expired.
9. The only conversations and communications that are valid as evidence are those :
a) the transcription of which the Prosecution Service ordered to the Criminal Police body carrying out the interception and recording, and indicated as evidence for the Prosecution ;
b) the transcription of which, based on copies as mentioned in the previous subsection, is carried out by the Defendant, who adds it to the request for the opening of the investigation by the investigating Judge or to the defence ; or
c) the transcription of which, based on copies as mentioned in the previous subsection, is carried out by the Prosecuting party within the limitation period established for requesting the opening of the investigation by the investigating Judge, even if said party does not request it or is not legitimately entitled to do so.
10. The Court may listen to the recordings in order ot establish whether any corrections need to be made in transcriptions already carried out or new transcriptions need to be added to the case file, whenever deemed necessary to discover the truth and settle the case.
11. The people whose conversations or communications were intercepted and transcribed may examine the corresponding technical equipment until final Judgement is given.
12. Any technical equipment regarding conversations or communications that are not subject to transcription in order to serve as evidence shall be kept in an envelope sealed with wax and held to the order of the Court, being destroyed after the sentence becomes final and binding, thus closing the proceedings.
13. Once the sentence becomes final and binding, as provided for in the previous subsection, the technical equipment that has not been destroyed shall be kept in an envelope sealed with wax, together with the case file, and may only be used if an extraordinary appeal is filed.
Section 189
Extension
1. The provisions in Sections 187 and 188 apply correspondingly to conversations or communications transmitted by technical means other than the telephone, namely electronic mail or other ways of telematic data transmissions, even when kept on digital equipment, as well as to the interception of communications between people present.
2. The gathering and adding to the case file of data regarding cell location or of records regarding conversations or communications can only be ordered or Authorized, at any stage of the proceedings, following a Judicial Order with regard to the offences provided for in subsection 1 of Section 187 and concerning the persons mentioned in subsection 4 of said Section.
Section 269
Acts to be ordered or Authorized by the investigating Judge
1. During the inquiry, the investigating Judge is the only Authority competent to order or authorize :
e) The interception and recordings of conversations or communications as provided for in Sections 187 and 189 ;
f) The performance of any other acts strictly dependent by Law on the investigating Judge's Order or Authorization.
Whoever kills another person shall be punished with imprisonment from 8 up to 16 years
Section 138
Exposure or Abandonment
1. Whoever endangers the life of another person :
a) exposing him/her in a place that subjects him/her to a situation from which he/she cannot defend himself/herself on his/her own : or
b) abandoning him/her, defenceless, whenever the perpetrator had the duty to watch, keep vigilance over or assist him/her, shall be punished with imprisonment from 1 up to 5 years.
2. If the fact is committed by an ascendant, a descendant, an adoptive parent or an adopter of the victim, the perpetrator shall be punished with imprisonment from 2 up to 5 years.
3. If the fact results in :
a) a serious assault on physical integrity, the perpetrator shall be punished with imprisonment from 2 up to 8 years.
b) death, the perpetrator shall be punished with imprisonment from 3 up to 10 years.
Section 161
Abduction
1. Whoever abducts another person by means of violence, threat or artifice in order to ;
a) submit the victim to extortion ;
b) commit an offence against the victim's freedom and sexual self-determination ;
c) obtain a ransom or reward ; or
d) force the Public Authorities or a third party into committing an act or omission, or into supporting an activity ;
shall be punished with imprisonment from 2 up to 8 years.
2. Whenever the situations provided for :
a) in subsection 2 of Section 158 apply, the perpetrator shall be punished with imprisonment from 3 up to 15 years ;.
b) in subsection of 3 of Section 158 apply, the perpetrator shall be punished with imprisonment from 8 up to 16 years.
3. Whenever the perpetrator voluntarily renounces to his/her goal by releasing the victim, or seriously endeavours to achieve this, the punishment may be particularly mitigated.
Section 254
Profaning a corpse or a burial ground
1. Whoever :
a) without the entitled person's consent, removes, destroys or conceals a corpse or part of it, or the ashes of a deceased person ;
shall be punished with imprisonment up to 2 years or with a Fine, up to 240 days.
2. The attempt is punishable
Section 131
Ability and duty to testify
1. Any person who is not banned due to mental illness has the ability to be a witness and may decline only when provided for by Law.
2. The Judicial or Prosecuting Authority checks the physical or mental ability of any person to give Testimony, whenever this is required to assess his/her credibility, and without causing any delay to the normal course of the proceedings.
3. In case of a Testimony given by a minor under 18 concerning an offence against the freedom and sexual self-determination of minors, a personality assessment may be conducted.
4. The inquiries referred to in the previous subsections, and ordered prior to the Testimony, do not prevent it from being given.
Section 132
General duties of the witness
1. Unless otherwise provided for by Law, the witness shall be bound to the following duties:
a) To appear in due time and place before the Authority by whom he/she was Legally summoned or subpoenaed, keeping himself/herself at the disposal of that Authority until excused ;
b) To take an Oath when questioned by a Judicial or Prosecuting Authority ;
c) To obey to Legally given instructions on how to Testify ;
d) To tell the truth when questioned ;
2. The witness shall not be bound to answer when alleging that self-incrimination may result from his/her answers.
3. In order to receive summons, the witness may state his/her residence, office address or any other domicile of his/her own choice.
4. Whenever the witness must give Testimony, even in the course of an act that is barred to the public, his/her Lawyer may be present, thus informing hi/her, whenever deemed necessary, of the rights he/she is entitled to, without intervening in the examination.
5. No Lawyer acting as defence counsel for a formal suspect in the proceedings may be present with the witness under the provision set forth in the previous subsection.
Section 135
Professional secrecy
1. Members of the Clergy, Lawyers, Doctors, Journalists, members of credit institutions and any other persons whom the Law allows or imposes professional secrecy, may be excused from giving Testimony on facts falling within it.
2. If there ate reasonable doubts about the legitimacy of the excuse, the Judicial or Prosecuting Authority before which it occurred will carry out the necessary inquiries.
Should the Judicial or Prosecuting Authority, as a result, come to the conclusion that the excuse is not legitimate, it shall then instruct, or request the Court to order that the Testimony be given.
3. The Court superior to the one where the incident arose or, in case the incident arose in the Supreme Court, the plenary meeting of it's Criminal Section may decide that Testimony be given with breach of professional secrecy whenever there is reasonable ground for it, according to the principle that the preponderant interest prevails, namely considering that Testimony is essential to discover the truth, the seriouness of the offence and the need for protection of rights. The intervention is initiated by the Judge, ex-Officio or upon request.
4. In the cases set forth in subsection 2 and 3, the decision of the Judicial or Prosecuting Authority or that of the Court is taken after hearing the representative body related with the profession the secrecy of which is at issue, under the terms and with the efforts provided for in the Legislation applying to that body.
5. The provisions in subsection 3 and 4 do not apply to religious secrecy.
Section 172
Undergoing an examination
1. Whenever a person attempts to avoid or hinder any due examination or providing any object to be examined, he/she may be compelled to do so by decision of the competent Judicial or Prosecuting Authority.
2. The provisions of subsection 2 of Section 154 and of subsection 5 and 6 of Section 156 apply accordingly.
3. Any examinations that are liable to offend a person's modesty must respect the dignity and, as far as possible, the modesty of the person undergoing them. The examination is exclusively attended by the person performing it and by the competent Judicial or Prosecuting Authority, the person to be examined may be accompanied by a person he/she relies on, if no danger arises from a delay, and he/she must be informed of this possibility.
Section 182
Professional or Official Secrecy and Secrecy of State
1. When ordered to do so by the Judicial or Prosecuting Authority, the persons mentioned in Sections 135 to 137 present it with the Documente and any Objects in their possession that must be seized, except when invoking, in writing, professional or Official Secrecy, or Secrecy of State.
2. Whenever refusal is based on professional or Official Secrecy, the provisions of subsection 2 and 3 of Section 135 and those of subsection 2 of Section 136 apply accordingly.
3. Whenever refusal is based on Secrecy of State, the provisions of subsection 3 of Section 137 apply accordingly.
Section 187
Admissibility
1. Intercepting or recording telephone conversations or communications can only be Authorized at the stage of inquiry, whenever there are reasons to believe that this measure is essential to discover the truth, or because evidence would otherwise be impossible or very difficult to obtain, under a substantiated order of an investigating Judge and upon a request submitted by the Prosecution Service, with regard to the following offences :
a) Offences punishabloe with a maximum imprisonment term exceeding 3 years.
4. Irrespective of the holder of the communication means used, interception or recording as provided for in the previous subsections can only be Authorized regarding :
a) a suspect whether formal or not ;
b) any person serving as an intermediary, about whom there are reasonable grounds to believe he/she receives or transmits messages aimed at or coming from a suspect, whether formal or not.
Section 188
Operation-related formalities
1. The Criminal Police body carrying out the interception and recording as referred to in the previous Section draws up the corresponding report and a statement outlining the passages that are relevant as evidence, offers a brief description of the contents therein and explains their significance for discovering the truth.
2. The provisions set out in the previous subsection shall not prevent the Criminal Police body carrying out the investigation from previously taking knowledge of the contents of the intercepted communication, so as to be able to take the necessary precautionary and urgent measures in order to safeguard evidence.
3. The Criminal Police body referred to in subsection 1 informs the Prosecution Service every 2 weeks as from the beginning of the first interception carried out in the proceedings of the corresponding technical equipment, as well as of the respective reports and statements.
4. The Prosecution Service informs the Judge of the elements referred to in the previous subsection at the latest within a period of 2 days.
5. In order to take knowledge of the contents of the conversation or communications, the Judge is assisted, whenever deemed convenient, by a Criminal Police body, and appoints an interpreter, if necessary.
6. Subject to the provisions set forth in subsection 7 of the previous Section, the Judge determines that any technical equipment and statements clearly unrelated to the proceedings be immediately destroyed :
a) whenever they concern conversations in which none of the persons referred to in subsection 4 of the previous Section intervene ;
b) whenever they include information covered by professional or Official Secrecy, or by Secrecy of State ; or
c) whenever their disclosure may cause serious harm to any rights, freedoms and guarantees, all intervening parties shall be bound by secrecy with regard to the conversations that have come to their knowledge.
7. During the inquiry, and upon request of the Prosecution Service, the Judge determines that any conversations and communications essential to substantiate the application of coercive or property guarantee measures, except for the statement of identity and residence, be transcribed and added to the case file.
8. As soon as the inquiry is closed, the Prosecuting party and the Defendant may examine the technical equipment regarding the conversations and communications, and they may obtain at their expense, copies of the Sections they wish to transcribe and add to the case files, as well as copies of the statements referred to in subsection 1, until the limitation period established either for requesting the opening of the investigation, by the investigating Judge or for submitting the defence has expired.
9. The only conversations and communications that are valid as evidence are those :
a) the transcription of which the Prosecution Service ordered to the Criminal Police body carrying out the interception and recording, and indicated as evidence for the Prosecution ;
b) the transcription of which, based on copies as mentioned in the previous subsection, is carried out by the Defendant, who adds it to the request for the opening of the investigation by the investigating Judge or to the defence ; or
c) the transcription of which, based on copies as mentioned in the previous subsection, is carried out by the Prosecuting party within the limitation period established for requesting the opening of the investigation by the investigating Judge, even if said party does not request it or is not legitimately entitled to do so.
10. The Court may listen to the recordings in order ot establish whether any corrections need to be made in transcriptions already carried out or new transcriptions need to be added to the case file, whenever deemed necessary to discover the truth and settle the case.
11. The people whose conversations or communications were intercepted and transcribed may examine the corresponding technical equipment until final Judgement is given.
12. Any technical equipment regarding conversations or communications that are not subject to transcription in order to serve as evidence shall be kept in an envelope sealed with wax and held to the order of the Court, being destroyed after the sentence becomes final and binding, thus closing the proceedings.
13. Once the sentence becomes final and binding, as provided for in the previous subsection, the technical equipment that has not been destroyed shall be kept in an envelope sealed with wax, together with the case file, and may only be used if an extraordinary appeal is filed.
Section 189
Extension
1. The provisions in Sections 187 and 188 apply correspondingly to conversations or communications transmitted by technical means other than the telephone, namely electronic mail or other ways of telematic data transmissions, even when kept on digital equipment, as well as to the interception of communications between people present.
2. The gathering and adding to the case file of data regarding cell location or of records regarding conversations or communications can only be ordered or Authorized, at any stage of the proceedings, following a Judicial Order with regard to the offences provided for in subsection 1 of Section 187 and concerning the persons mentioned in subsection 4 of said Section.
Section 269
Acts to be ordered or Authorized by the investigating Judge
1. During the inquiry, the investigating Judge is the only Authority competent to order or authorize :
e) The interception and recordings of conversations or communications as provided for in Sections 187 and 189 ;
f) The performance of any other acts strictly dependent by Law on the investigating Judge's Order or Authorization.
Addendum
Addressed to the
Competent Judicial Authorities in the United Kingdom
IN THE NAME OF JUSTICE
AND UNDER THE LEGAL PROVISIONS OF INTERNATIONAL MUTUAL LEGAL
ASSISTANCE IN CRIMINAL MATTERS (ACT, 144/99, AUGUST 31, 1999).
The public Prosecutor of
the Portimao jurisdiction in Portugal requests to the competent
judicial authorities in the United Kingsom in complement with the
Letter of Request despatched under official 3704438 dated of the
23/01/2008 to omit and replace the questions formulated under point
XIV (only in replacement of part (N| 7) where it inquired "Can
you point out any incident with Kate or Gerald McCann?", XVI and
XXII with the new wording, due to formal imperatives and main request
of the responsible for the accomplishment of the Letters of Request,
Mr Stuart Prior, which the translation refers to.
Point XIV - remove the
question n| 7, replacing it by the following: "Was there
anything said or done by Kate or Gerald McCann in your presence or
during any contact with them that raised any suspicion that they had
any knowledge of what happened to Madeleine, other than of the
circumstances described to the Portuguese investigators?"
Point XVI - Delete,
replacing it by the following: "The competent entity are
requested to provide a report covering the antecedent history of
arguidos (formal suspect) Gerald McCann and Kate Healy. This report
should include details of the family and their associates connected
to this case. It should also cover their financial status prior to
and after the disappearance of Madeleine. Their professional status
and employment history as well as any criminal records relevant to
them. This will assist the investigation to identify if there are any
unknown motives behind the disappearance of Madeleine McCann, or aid
the identification of any individual or individuals responsible for
her disappearance."
Point XXII - Delete,
replacing it by the following: "To request details of all the
transaction on the ?mastercard? credit cards accounts known to be
used by Gerald McCann (mastercard account numbers ************ and
*************. We request these transactions from the 1st April 2007,
approximately one month before the McCann came to Portugal, to the 30
Sept 2007, shortly after they returned to the UK. This will enable
the investigation team to ascertain if any relevant payments or
transactions were made from the accounts. This will assist the
investigation to identify if there are any unknown motives behind the
disappearance of Madeleine McCann, or aid the identification of an
individual or individuals responsible for her disappearance. To date
the McCanns have not identified any such payments or transactions to
the investigation team."
Portimao 12-03-2008
The Public Prosecutor
Dr Jose de Magalhaes e
Menezes
