ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Madeleine Beth McCann went missing from PDL in Portugal on the 3rd May 2007, there are so many unanswered questions, please discuss

Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby HawkEyes1 » Tue May 27, 2008 5:46 pm

Since the proposed reconstruction came under the Rogatory Letters mandate, I am now including reconstruction in the thread title.

It is offically ROGATORY LETTER, PJ INTERVIEWS, AND RECONSTRUCTION UPDATE. In this way, it will more accurately reflect the contents for discussion here. While I plan to update this thread on a regular basis through to the trial stage, if you see breaking news relevant to these three categories, please feel free to post here.

Many thanks!
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby HawkEyes1 » Tue May 27, 2008 5:53 pm

From the Lusa Agency:

Madeleine: Reconstituição do desaparecimento anulada por ausência de quatro dos intervenientes - PGR
27 de Maio de 2008, 16:00
Lisboa, 27 Mai (Lusa) - A reconstituição dos factos relativos ao desaparecimento da criança inglesa Madeleine McCann, marcada para quinta e sexta-feira, foi anulada devido à falta de quatro dos intervenientes, informou hoje a Procuradoria-Geral da República (PGR).

Segundo uma nota da PGR, a dilig├¬ncia foi "dada sem efeito" devido ├á "j├í anunciada n├úo compar├¬ncia" de quatro amigos do casal McCann que se encontravam a passar f├®rias no aldeamento tur├¡stico da Praia da Luz, Algarve, na altura em que a crian├ºa desapareceu, a 03 de Maio de 2007.

Kate e Gerry McCann mostraram-se dispostos a participar na reconstituição do desaparecimento da filha Madeleine, mas os seus amigos colocaram em questão a validade e o modelo proposto.

"Basicamente, não cabe a Gerry e Kate [a realização da reconstituição] porque eles são arguidos e, se for requerida a sua presença, eles irão, têm de ir", garantiu recentemente o porta-voz do casal, Clarence Mitchell, à Agência Lusa.

"Tudo depende dos amigos, que foram convidados a ir tamb├®m mas, como n├úo s├úo arguidos, t├¬m o direito de questionar a utilidade do exerc├¡cio e se vai ajudar a encontrar Madeleine - e a resposta neste momento parece ser n├úo", referiu.

Uma reconstitui├º├úo de todos os passos dados pelos pais e seus amigos presentes na altura foi sugerida pela Pol├¡cia Judici├íria (PJ) h├í cerca de um m├¬s, primeiro atrav├®s dos advogados dos McCann e depois por convoca├º├úo individual.

CC/BM/FC.

http://noticias.sapo.pt/lusa/artigo/bdf4afbe7a86b4c0a0bbc8.html


A translation will follow, but essentially four of the Tapas 9 have said they will not return. to Portugal for the reconstruction.
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby HawkEyes1 » Tue May 27, 2008 6:00 pm

Google Translation: Portuguese ┬╗ English (with some minor amendments) of the above article:

Madeleine: Reconstruction cancelled by the absence of four players - PGR
May 27, 2008, 16:00

Lisbon, May 27 (Lusa) - The reconstruction of the facts concerning the disappearance of British child Madeleine McCann, scheduled for Thursday and Friday, was cancelled due to lack of four contributors, today informed the Attorney General's Office (PGR) .

According to a note of the PGR, the investigation was "given no effect" due to "no show already announced" four friends of the couple McCann who were on holiday in the tourist resort of Praia da Luz, Algarve, when the child disappeared, May 03, 2007.

Kate and Gerry McCann showed willingness to participate in rebuilding the disappearance of their daughter Madeleine, but their friends put in question the validity and the proposed model.

"Basically, it is not up to Gerry and Kate [the completion of restoration] because they are defendants and, if requested their presence, they will have to go", recently assured the spokesman of the couple, Clarence Mitchell, the Agency Lusa.

"Everything depends on friends, who were also invited to go but, as they are not defendants have the right to question the usefulness of the exercise and whether vai help find Madeleine - and the answer now seems to be no," he said.

A reconstitution of all steps taken by parents and friends present at the time was suggested by the Policia Judiciaria (PJ) about a month ago, the first by the lawyers of the McCann and then convened by individual.

CC / WB / CF.

http://noticias.sapo.pt/lusa/artigo/bdf4afbe7a86b4c0a0bbc8.html
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby HawkEyes1 » Tue May 27, 2008 6:30 pm

Google translation from Portuguese into English of a key court document in the Criminal Section of the Court of Appeal of Evora, published on April 29, 2008, which appears not to have been found by any investigative journalists in the UK. It deals with interception of email, text messaging, and telephone calls and will affect evidence in the McCann Case:

Criminal Section of the Court of Appeal of Evora

PRIOR AUTHORIZATION ORDER

Date of agreement: 29/04/2008
Votes: Unanimous
Full Text: S

Half Procedure: CRIMINAL APPEALS
Decision: NOT PROVIDED

Summary:
1 - The short message service (SMS) and multimedia messaging service (MMS) are, respectively, in conveying information in small text messages, and messages with sound, image and video, either through the Internet, either through telephone.

2 - The data content, such as the content of the messages may be intercepted in real time, with due judicial authorisation and did not belong to ask operators of mobile network operating in Portugal the consignment on digital media (CD or dvd) the content of communications and messages sent and received between certain phones in a given period of the past, because that embodies a request on a reality that, from a legal perspective, can never have happened, on pain of possible incursion into liability crime (Article 192. ┬║ and 194. Penal Code), who has (have) done or allowed to consummate consumasse. Because these can only be achieved by placing prior technical means of interception and recording of the content of the messages in question, which always lack of evaluation of their legality by the investigating judge, either in terms of eligibility, either in terms of need , Appropriateness and proportionality.

3 - Indeed, the data content of communications or messages conveyed through telephone or between these devices and computers and vice versa, can only be legitimate and lawful interception of communications under ongoing, verified the requirements prevented in art . 187. Of the CPP.


Decision Full Text:
Agree, on a conference in the Criminal Section of the Court of Appeal of Evora

1. In the case of inquiry No /, pending Ministry of Public Services in the District ofÔǪ where investigates the disappearance of MM and the possible occurrence of crimes of kidnapping, murder, exposure or abandonment of minor and concealment of corpses, the Portuguese. Mr Public Prosecutor holder of the process of investigation, under invocation of the provisions of art. 15. Article 2 of Law No. 88/89 of September 11, 187. Article 1, alin. a) and 4, alin. a) and b), 252. ┬║-A and 269. thereof No. 1, alin. e) of the CPP, promoted, among other steps, if requested at 3 national mobile telephone operators (TMN, VODAFONE and OPTIMUS) to send in digital media (CD or DVD), the complete listings of telephone traffic for calls made and received in the period of time between the day April 28, 2007 until September 9, 2007, including location and mobile trace-back, as well as on roaming calls and SMS and MMS messages and their contents, the following telephone numbers:

(Here are 10 phone numbers)

::::::

-- No, not yet identified phone during that on 02 May 2007 sent 14 SMS messages written to GM and 4 other the day after the disappearance of MM

-- If requested from the mobile telephone operator TMN, sending in digital media (CD or DVD) of the complete listing of telephone traffic referring to calls made and received in the period of time between 20:00 M of the day 03 of May 2007 and 12.00 M of the day 04 of May, 2007, including location and mobile trace-back, as well as on roaming calls and SMS and MMS messages and their contents, the following phone numbers:

:::::::::::::

2. However, Mr Judge of Criminal Procedure, by its order of 24.09.2007, did not authorize the shipment on digital media (CD or DVD) of the contents of any message sent or received on SMS or MMS when it comes to all phone numbers above, for, in his view, this would mean taking note of the contents of the conversation or telephone communication has already made without there being any judicial ruling prior to authorization, and by inexistir legal support for the defendant (see fls. 12 of these file) .

3. Inconformado with so decided, the prosecutor brought this action under constant fls.1 to 7, drawing the motivation that made the following conclusions:

"1 - Our dissentimento refers to scholarly order of the Judge M. ┬░ of Criminal Procedure, fls. 2687 to 2689, in that they did not authorize "the consignment on digital media (CD or DVD) of the contents of any message sent or received and by SMS or MMS.

2 - There is no reason to distinguish, as the distinguished Judge M. ┬░, the two kinds of communications - content of SMS and MMS traffic and listings of telephone calls received regarding effected. Where the law does not distinguish, because no one is distinguished.

3 - The right to the reserve of their privacy does not run greater risk of being injured by access to the content of SMS or MMS than by knowledge of the precise circumstances of time, place, method and frequency of calls received and made.

4 - If the procedural law refers to the use of communications already made, it expressly for the permit, as follows linear and clearly the requirements of paragraph l of art. 189 of the CPPenal.

5 - To preserve the reserves of their privacy of the interlocutors of SMS or MMS in this case, obviating, through its judicial control, to any improper intrusion that intimacy, simply to Judge M. ┬░ make use of established in paragraph . Paragraph 3 of art. 179 of the CPPenal, subject to own and prior knowledge of their content the ability to use as evidence of SMS and MMS.

6 - By not allowing access to the content of SMS and MMS, the scholarly order infringed the provisions of arts. 179 ┬░, 187 ┬░ and 189 of the CPPenal.

Accordingly, repealing, noted in part, the scholarly order and ordering its replacement by another requesting the three national mobile telephone operators in the consignment digital media (CD or DVD) of the contents of any message sent or received and by SMS or MMS and their content in terms of all the phone numbers appearing on the fls. 2681 and 2682, in compliance with specified in paragraph 3 of art. 179 ┬░.. "

4. The appeal came to be accepted by order of 21.12.2007, following a complaint lodged in this ratio (see fls.15).

5. Mr Judge maintained the order, saying, in essence, the following:

"The taking of knowledge of the content of communications made by SMS or MMS's, because it is held communication through telephone, necessarily requires the prior judicial authorization and you will result from interception and held authorized by that order on the communication in course.

From my point of view and unless all due respect we can not make any equivalence between data traffic (eg, those on the lists of numbers dialed and received) and data content (those related to the content of communication, the exchanged words) for the purpose of treating the same way and that by the very nature of each other, is not it know that they, on X, the particular time, a communication between the numbers Z and K, in particular place (data traffic) and know what there is nothing, combined or discussed.

Absence any phone legitimately seized also does not seem legal to use the rules concerning the seizure of correspondence failing that, by that way, being relegated to the demands placed on the interception of communication in progress, what would happen if the carrier ordered that send, if technically feasible, the content of those communications made through the phone.

Finally, the argument 'stored in digital form' refers to communications made by any technical means other than the telephone, eg. e-mail, real-time computer network and so on., and it is not here, unless all due respect, any application. "

6. In this instance, the Portuguese. Mr Attorney General, in his scholarly fls.22 opinion of the 97, is the understanding that the appeal should be dismissed as manifestly unfounded.

7. It met the provisions of art. 417. Article 2 of CPP, was not made any response. Harvested legal visas and held the conference, it decides.

8. Question to consider.

Given the conclusions presented by the applicant's motivation, the issue is to decide only the question whether it is permissible to request the three national mobile telephone operators to refer to digital media (CD or DVD) the content of any message sent, or received by SMS or MMS and their content in terms of all the phone numbers appearing on the fls. 2681 and 2682, with reference to specified periods of time there.

For example:

First of all, interest reporting some lessons on issues relating to secrecy of telecommunications, what is at stake and advance the principles and relevant normação.

The concept of electronic communication is not provided for in the area of criminal law, but is defined in art. . 2 No. 1, alin. a) of Law No. 41/2004, from August 18, which regulates the processing of personal data and privacy in the electronic communications sector. Does this rule is that electronic communication "or sent any information exchanged between a finite number of shares using an electronic communications service accessible to the public." It is a very broad and comprehensive concept that the law itself considers worth only "for the purposes of this law."

Rather, telecommunications is a concept that no current law sets. The legal system uses it, for example, the text of paragraph 2 of art. 194. Penal Code, but not down. Unlike in the past laws, repealed today, setting up telecommunications. Thus, Law No. 91/97, August 1, which defined the basis that the general followed the establishment, management and operation of telecommunication networks, said in his art. 2. Thereof, that "by telecommunications means the transmission, reception or transmission of signals, representing symbols, writing, images, sounds or information of any nature by wire, for optical systems, for radio and other electromagnetic systems." However, this law was repealed, except for a small part of its articles, by point a) of art. 127. Of the Law No. 5 / 2004, February 10 (Law of Electronic Communications).

However, the latter law does not define telecommunications. Moreover, this being the degree of legal structural framework of this sector of activity, it is significant that he has not devote any definition of telecommunication, within the definitions listed in your art. 3. Thereof.

Having repealed a piece of legislation that incorporated the first of these definitions, has to do here is a choice of the legislature that, perhaps, chose not to be bound by a legal definition that could quickly become technically outdated. [1]

It should be recalled that in telecommunications services, it is distinguished three species or types of data or information: (i) the so-called data, on the network connection, (ii) the so-called traffic data, functional data necessary for the establishment of and a connection or communication generated by the use of the network (eg. location of the user, location of the recipient, duration of use, date and time, frequency) and (iii) the so-called data content, concerning the contents of the communication or the message [2].

Moreover, since the various telecommunications services used for the transmission of communications verbal or otherwise (written messages, data on packages), the elements inherent to the structure may still in a sequential composition in four times: (i) the stage prior to the statement, (ii) the establishment of communication, (iii) the stage of the communication itself, and (iv) the further communication. For the first time, are essentially on the data, while in the other, it is the consideration of traffic data and content.

The basic data are, in the perspective of users, the information needed to access the network, particularly through the linking individual and for use of their own service - interest here, in essence, the number and data through which the user has access the service.

These elements (such as identifying the user and its postal address) are provided to the operator of the service for the purpose of establishing the agreement (the contract) for connection to their network or assigned by this that (the number of access); data such as personnel who are, the holder on them should have the right to reserve, especially as regards the entry of such elements in public directories (ie, the schedules public telephone or other telecommunication services complementary). This reserve provides that the inclusion of such elements in the lists public should be voluntary.

This reserve on the numbers of post or access - to be right of users - prevents the public dissemination and the consequent possibility of public awareness of the number of access of a user, so, essentially, to avoid, of their own volition, some situations of interference that can occur in cases of harassment trade: constant repetition and disturbing, 'marketing' telephone, use of lists of direct advertising by companies and enterprises of polls.

The reservation on the basis of elements, wanted to, in essence, prevent the tranquility of their own interest against possible intrusions or greater by the public disclosure of such information, evidence perhaps, also, moreover, that should not be used, unless explicit authorization other than by the network operator, justifying the existence of such limits as to the disposal of the items for commercial purposes of telephone or other telecommunication services complementary.

Unlike of the basic (elements necessary to establish a basis for communication), which falls short before, preliminary and are instrumental in any communication, called elements of traffic (functional elements of communication), as the elements of such content, already has to do directly with the Commission, either on their identificabilidade, either on the content of the message itself or communication.

Elements or functional data (traffic) required or produced by the establishment of the link through which a communication concrete, with certain content, is operated or transmitted, are the origin, destination and route. These elements functionally necessary to the establishment and management of communication identify, or identifying the communication: when preserved, facilitating the identification of communications between the issuer and the recipient, date, time, the frequency of connections made

Thus vital elements already inherent in the communication, as they will identify in real time or after the event, users, the direct relationship between them over the network, the location, frequency, the date, time and duration of communication, should join the guarantees that are subject to use the service, especially all that respects the confidentiality of communications.

It makes sense that is the subject of secret information that lets you know who talked to whom and the circumstances in which time these conversations took place and the time it took and the frequency with which it happened.

Finally, the elements of content - data on the actual content of the message, the correspondence sent by the use of the network. Having to do with the content, the protection and guarantee against any intrusion, interception or deciphering the message by unauthorized person is a core element of users of the system - and is obliged to ensure the operators, so rigorous, using all technical means , The secrecy of communications services.

It can not fail to take into account that the confidentiality of correspondence and telecommunications raises security firm, entered, first in the constitutional text.

Indeed, according prevented in paragraphs 1 and 4 of art. 34. Thereof, the CRP, the home and the confidentiality of correspondence and other private means of communication are inviolable, and prohibited all the interference of public authorities in correspondence, telecommunications and other media, saved the cases provided by law in matters of criminal prosecution.

The prohibition of interference includes the freedom of sending and receiving correspondence and the prohibition of detention or seizure, as well as interference, which extends not only to public entities but also, and a fortiori, to private entities.

The restrictions are thus allowed only in criminal proceedings and are also subject to law (Article 18. Article 2 and 3) and can only be decided by a judge (Article 32. Article 4).

The matrix constitutional forms, in this thematic area, marked by the contingency of solutions to the ongoing conflict between the unstoppable technological progress and the values inherent in the human person that are always, like a right to speak and communication, corollary of the right to freedom individual.

The guarantee of confidentiality covers not only the content of the letter, but the traffic as such (species, time, duration, intensity of use).
.
Under the requirements of paragraph 4 of that art. 34. Thereof, the right to secrecy of telecommunications involves the ban on devassa of its content and its disclosure by those who have access to them, including the employees of telecommunications services, who runs a duty of professional secrecy, as a guarantee of the right to secrecy of the same telecommunications, which may not be infringed.

This item is all the more relevant constitutional as a matter of criminal prosecution for exceptions to the inviolability of telecommunications are not the rule, or rather, are counter-rule. Indeed, the ordinary law stands, even in matters of criminal procedure, the interference in telecommunications is only allowed in cases of the type of crime correspond to the legal catalogue of crimes whose seriousness and social relevance of social peace that allows interference (see Art. 187. of the CPP).

It has been well in sight, with the prohibition of speech interference, safeguarding the freedom to communicate and a ban on intervening in it.

Hence, in fact, reflecting the growing prominence and sequente protection in shaping those fundamental values such as the Penal Code has charged conduct violation, namely the right of citizens to the statement aside, the secrecy of communications.

Indeed, under the heading of crimes against reserve of privacy, or the devassa the privacy or the violation of correspondence and telecommunications, are typically illegal behavior - art. 192. ┬║ and 194. Of the PC.

Confidentiality of telecommunications is thus tend absolute, giving only the cases provided by law on criminal procedure, that is, as a means of acquiring evidence.

The security of the reserve of privacy results also ban the use of evidence obtained in violation of the secrecy of privacy.

For the prosecution to C.R.P. provides in art.32. Article No. 8, which "are void all evidence obtained through torture, coercion, harm the physical or moral integrity of the person, improper intrusion into private life, at home, in correspondence or in telecommunications" .

The art.126., Paragraph 3 of the Code of Criminal Procedure considers, in turn, that 'except as otherwise provided by law, are also void and can not be used, the evidence obtained by intrusion into privacy, with home, in correspondence or in telecommunications without the consent of its owner.

With technological progress, the inviolability of the media and private telecommunications secrecy increasingly linked with the data processing elements or by the side of users involved, in their dealings with telecommunications service providers.

Thus the art. . 4, paragraph 1 of Law No. 41/2004, from August 18, which transposes into national law Directive No. 2002/58/EC of the European Parliament and the Council of June 12 Concerning the processing of personal data and the protection of privacy in the electronic communications sector, states that "companies that offer networks and electronic communications services or to ensure the inviolability of communications and traffic data by means of public communication networks and electronic communications services accessible to the public "and is" forbidden to listen, the installation of listening, storage or other means of interception or surveillance of communications and related traffic data by third parties without the prior express consent of users, except in cases provided for by law "(2).

Paragraph 3 of Article stipulates, however, that "the provisions of this Article shall not prevent the legally authorized recordings of communications and the related traffic data, when carried out under lawful business practice, done for the proof of a transaction commercial or any other communication made under a contractual relationship since the data subject has been informed and given their consent. " And the No. 4 also authorizes the recordings of communications to and from public services to provide emergency situations of any kind.

In modern transmission systems, registration of personal data on the telephone traffic and billing is done by the corresponding operator of the service at the end of phase dynamics of the flow of dialogue or communication (see, if Portuguese, Articles 6 and 7 of Law No. 41/2004, August 18).

This registration is intended first and foremost to recover from the customer, but can serve for researchers to find items stored in databases on the authors of the communication, the time that was done, the place, the volume and duration of telephone traffic . In such cases, the communications are made, the data shows only the existence or the historical flow of dialogue, that is, the earlier phase dynamics.

The "traffic data" are now defined in art.2. Thereof, al. d) of Law No. 41/2004, from August 18, as "any data processed for the purpose of sending a communication through an electronic communications network or for the billing it", stating paragraph 2 the art.6. thereof, of this law some of the elements that are part of that concept.

While the data, connecting to the network, are preliminary and instrumental elements of any communication, which are subject to secrecy if the user has requested a confidentiality regime in the service of telecommunications, data traffic are already elements inherent in the communication , Allowing real-time or post identify users, the direct relationship between them over the network, the location, frequency, the date, time and duration.

Users are not only subscribers who have a contract with telecommunications services, as others that have electronic linkage with the number of subscribers.

Law No. 41/2004, still treats the location information that defines [art. . 2 No. 1, alin. e)] as "any data processed in an electronic communications network that indicate the geographical location of the terminal equipment of a subscriber or any user of an electronic communications service accessible to the public."

Knowledge of data revealing the so-called "mobile location" of the phone of a particular individual shows him on the physical journey that it did - or is doing - or reveals their mobility or stay in one place. In other words, the "mobile location" reveals, through the observation of its connection to the mobile telephone network, the location of the owner of a telephone set. Learn the location cell "has the same view evidence and the same effectiveness of a traditional surveillance by police officers on a particular individual, even though the latter may be more intrusive (to allow anyone to place collect more information, particularly concerning the privacy of the person under surveillance) that the so-called "mobile location."

The Attorney General's Office, in its opinion No. 21/2000 (DR, Series II, August 28) in completing 2. Rd, expressed his understanding that the investigation phase of the information, ".. . when attaching to traffic data or the data content, can only be provided to the judicial authorities, by telecommunications operators on the terms and the way in which the law of criminal procedure allows the interception of communications, depending on order or authorization of investigating judge (Articles 187. thereof, 190. ┬║ and 269. of paragraph 1, point c) of the Code of Criminal Procedure. "

Also Gomes Canotilho and Vital Moreira argue in annotation on art. 34. Of the CRP, which guarantee the right to confidentiality of correspondence and other means of private communication (Nos. 1 to 4) covers all kinds of correspondence from person to person (postal letters, printed), covering the same chances of orders that do not contain any written communication, and all telecommunications (telephone, telegram, fax, etc).

The guarantee of confidentiality covers not only the content of the letter, but the actual "traffic" as such (species, time, duration, intensity of use). Under the rules of art. 34. Thereof lies the so-called "electronic mail" because the insurance covers the correspondence certainly kept the matches via telecommunications.

The sending of electronic messages from person to person ( "email") meets the conditions of private correspondence. () Here the restrictions are allowed only in criminal proceedings (No. 4), and are also subject to law (art.18. Thereof - 2 and 3) and can only be decided by a judge. -- CF. Constitution of the Portuguese Republic Anotada, 2007, vol. I, pp. 544.

The distinction between communications traffic data, and its content is, today's irrelevant, since the Law 41/2004, of August 18, equates the traffic data to the data content for the purpose of ensuring the inviolability of communications. The assimilation of data content, which are the core of the most fundamental communication, and data traffic in order to protect the secrecy of telecommunications subject to obtaining such data to the system of interception and recording of conversations and telephone communications poured in art. 187. Of the Code of Criminal Procedure.
In terms of the criminal process art.269. Thereof No. 1, al. e) of the Code of Criminal Procedure states that during the investigation it is solely to the investigating judge to order or authorize the 'interception, recording or recording of conversations or communications, in accordance with Articles 187. ┬║ and 189. ".

The art.187. C.P.P. of the down the admissibility of the interception and recording of conversations or telephone communications, specifying the crimes for which it is possible to carry out bugging. The art.189. Thereof, of the same Code provides for the extension of the scheme provided for in Articles 187. ┬║ and 188. Of the talks or communications transmitted by any technical means other than the telephone, including e-mail or other forms of data transmission via telematics, even though it is stored in digital form, and the interception of communications between these.

In other words, it is only possible to intercept electronic communications not telephone the same conditions in which it allowed the conduct of telephone interceptions.

A communication, by its nature is a dynamic reality: vai on one side to another, between a transmitter and a receiver. By definition, while communication can not be saved. If anything, can be saved to register it.

This is the case, for example, with an e-mail. It is a communication networks while travelling in between the computer of origin and destination, but then when it comes to the latter, there is stored in the form of computer file, until it is eliminated.

The short message service (SMS) and multimedia messaging service (MMS) are, respectively, in conveying information in small text messages, and messages with sound, image and video, either through the Internet, either through telephone.

Thus, the data content, such as the content of the messages may be intercepted in real time, with due judicial authorisation and did not belong to ask operators of mobile network operating in Portugal the consignment on digital media (CD or dvd) the content of communications and messages sent and received between certain phones in a given period of the past because, as the Ambassador. Mr Prosecutor - General, embodies such a request on a reality that, from a legal perspective, can never have happened, on pain of possible incursion into criminal responsibility (Article 192. ┬║ and 194. Penal Code), who has (have) done or allowed to consummate consumasse.

It is not so much what the order of support of Mr. Judge defendant has said about the hypothetical possibility of such a technique have taken place because the technical possibility always exist, but the legal impossibility of the data content of the messages and communications or, if they existed, were subject to registration and recording. Because these can only be achieved by placing prior technical means of interception and recording of the content of the messages in question, which always lack of evaluation of their legality by the investigating judge, either in terms of eligibility, either in terms of need , Appropriateness and proportionality.

Nor can the content of messages sent or received possibly through the phones in hand, in the period from the day April 28, 2007 and September 9 of that year, have been subject to interception, registration and recording of any operator , Lacks legal basis, in part, reduced the claim by prosecutors at 1. Rd proceedings and contends that on appeal.

Indeed, the data content of communications or messages conveyed through telephone or between these devices and computers and vice versa, can only be legitimate and lawful interception of communications under ongoing, verified the requirements prevented in art. 187. Of the CPP.

So - without further lengthy considerations - it is said to be that the appeal must be dismissed.

9. Given the above, to judge rejected the appeal by the prosecutor, while maintaining a consequence, the order.

There are owed fees.

(Success by computer and read and reviewed by the rapporteur)

Evora, 2008.04.29
Fernando Ribeiro Cardoso

_____________________________

[1] - Sic, Pedro verdelho, the seizure of e-mail of Criminal Procedure, Journal of Public Prosecution, No. 100, pag.156.
[2] - Opinion No. 21/2000 of the Attorney General's Office, apud YVES POULLET and FRAN├çOISE WARRANT, "Nouveaux compl├®ments au service tel├®phonique et protection des donn├®s: ├á la recherche d'un cadre conceptuel ', in Droit de L' Informatique et des T├®l├®coms, 7├®me year, 1990/91, 1, pp. 19 and SS.


http://www.dgsi.pt/jtre.nsf/c3fb530030ea1c61802568d9005cd5bb/1d0c394965dccdf780257448004a568e?OpenDocument
Last edited by HawkEyes1 on Thu May 29, 2008 5:39 am, edited 2 times in total.
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby HawkEyes1 » Tue May 27, 2008 7:38 pm

Breaking news from Sky TV confirms that 4 of the Tapas 7 cannot make it to Portugal for the reconstruction:

Madeleine Reconstruction Abandoned
Updated:20:28, Tuesday May 27, 2008

Portuguese police have abandoned plans for a reconstruction of the night Madeleine McCann disappeared, according to reports.

It is understood that the event, planned for later this week, has been cancelled because several members of the so-called "Tapas Seven" are unable to be there.

Sky's Martin Brunt said: "It has been reported in Portugal that the attorney general's office has announced that the reconstruction, which was planned for Thursday and Friday this week, is not going to go ahead now.

"The reason given is that four of the Tapas Seven, for one reason or another, are not able to be there."

It is the second time it has been put off and Madeleine's parents, Gerry and Kate McCann, have always been reluctant to take part.

Brunt explained: " It was only a request from the Portuguese police, not a demand.

"The McCanns felt that many months ago their own suggestion of a reconstruction had been turned down.

"They felt that there would only be a good reason to hold such a reconstruction if it was used as a widely televised appeal for help and information."

http://news.sky.com/skynews/article/0,,30200-1317341,00.html
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby Bramble » Tue May 27, 2008 7:42 pm

Thank you HawkEyes1.
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby HawkEyes1 » Tue May 27, 2008 8:53 pm

You're welcome, bramble! Here is yet another Babelfish translation (but with some improvements in interpretation) of an article from today's SOS Madeleine McCann:


SOS MADELEINE MCCANN 27.05.2008

Maddie: Four friends of McCann refused reconstruction of the night of the crime

The PJ will now discuss with the Ministry for Public whether it is moving forward with the prosecution or if the reconstruction remains indispensable.

Four friends, who had accompanied Gerry and Kate McCann during their holidays in Portugal, have refused to return to Praia da Luz to participate in the reconstruction of events related to the disappearance of Madeleine; a diligence scheduled for next Thursday and Friday and that the Policia Judiciaria (PJ) considered "extremely important" to consolidate the investigation.

Information, confirmed today by a note of the Office of the Attorney General of the Republic (PGR), argues that, because of their presence, the diligence is pure and simply cancelled.

The announcement of non-cooperation of the four British, and the consequent cancellation of the reconstruction, has not surprised the investigators, because they had already received, more than a week ago, information from their colleagues in the United Kingdom of at least two of "Tapas Seven", the couple Jane Tanner and Russell O'Brien, would not return.

Friday past, a senior British police office in Enderby, having revealed that "Kate and Gerry McCann had established an agreement with their seven friends to prevent the realization of the recovery request by the Portuguese authorities," stressed that "they know that this reconstruction will not take place if the group is not complete. "

According to the same officer, the McCann couple did not want to "refuse directly and publicly discuss their participation, on pain of seeing public opinion in the United Kingdom turn against them."

"If their presence is required, they will, they must go," had said Clarence Mitchell about Kate and Gerry McCann stressing that the couple had always the arguidos status, but that was not the case with their friends.

The seven friends - Jane Tanner and Russell O'Brien, Matthew and Rachael Oldfield, David and Fiona Payne, and the mother of the latter, Diane Webster - were questioned as witnesses in Portugal and the United Kingdom, claiming to advance the enquiry into the disappearance of Madeleine, a position that the PJ had already questioned in the past and that the refusal announced today seems to confirm.

http://sosmaddie.dhblogs.be/archive/2008/05/27/maddie-quatre-amis-des-mccann-ont-refuse-la-reconstitution-d.html
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby blossom » Wed May 28, 2008 1:12 am

Thanks HawkEyes for your continuing fine work on this thread.

There's also a guardian link posted on the Main Thread which says they all refused to attend (not just 4). May be worth adding to this thread.

I am so fed up with the lot of them. Just my opinion, but the McCs never wanted to do it but knew it would look bad for them if they refused so they used their friends to get them off the hook.

Their friends in turn knew that nothing could be done to them by refusing to go because the request had to be voluntary. A win win situation for the McCanns & company.

They really do have a PACT=FACT but what is the glue that binds them together ffs?
They're not even blood relatives!

I've been an unwavering supporter of the PJ/PT from the beginning but after todays double whammy (pj can't get the text messages) i am feeling frustrated by their deafening silence on the case.

Why don't the PJ make some sort of statement? The Secrecy Law is no excuse as lots of info has come into the public domain and also statements from people like Souza.

Also, do you know if there is a Statue of Limitations in Portugal as in other countries? i.e. a time-limit for when charges can be laid in a criminal case?
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby HawkEyes1 » Wed May 28, 2008 1:22 am

Questions were raised earlier as to what the McCanns could be charged with by the PJ, if Madeleine or her body is not found. I have had my say on this thread, but as a corollary to the posting from the Criminal Section of the Court of Appeal of Evora above, it has been confirmed by 24Horas that there are:

Four Crimes under Investigation

There are four crimes being investigated as part of the process related to the Maddie Case, under the jurisdiction of the Portimao Court. In addition to the suspicions of abduction, homicide and hiding a cadaver, the judgment of the Court of Appeal in Evora, now released by 24horas, confirms that the Portuguese Justice system is also reviewing the occurrence of the practice of the crime of exposure by abandonment of a minor, punishable under the Penal Code with a sentence of between 3 and 10 years in prison. According to the law, one commits this crime when they place the life of another person in danger, "leaving them defenseless, whenever the accused fails in their responsibility to protect, watch over or assist."

http://joana-morais.blogspot.com/2007/12/madeleine-martin-brunt-special-on-fox.html
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby HawkEyes1 » Wed May 28, 2008 2:15 am

blossom wrote:Thanks HawkEyes for your continuing fine work on this thread.

There's also a guardian link posted on the Main Thread which says they all refused to attend (not just 4). May be worth adding to this thread.

Many thanks, blossom!

It is my understanding that it was Clarence Mitchell who said that the Tapas 9 all refused to return to Portugal for the reconstruction. I'd rather not include just his statements on the topic, but I will look for this link and will post it for those who can bear to read it.
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby HawkEyes1 » Wed May 28, 2008 2:23 am

blossom wrote: Also, do you know if there is a Statue of Limitations in Portugal as in other countries? i.e. a time-limit for when charges can be laid in a criminal case?

I read in the Panama News that the statute of limitations for a murder case is twenty years, but that it can be appealed in the Supreme Court, but I will see what else I can find.

It turns out this case was about a man named Portugal and it applies to the law in Panama and not the country of Portugal.

Wikipedia provides this information but nothing about the statute of limitations about murder cases in Portugal:

PORTUGAL
Overview
The Portuguese Penal Code was adopted in 1982 and has been revised on several occasions, most recently in 2007. It devotes a whole chapter on "crimes against human life". In fact, the very first crime addressed on that code is murder. The Portuguese Constitution (adopted in 1976) expressly forbids the death penalty (art. 24, § 2) and life imprisonment (art. 30, § 1). Additionally, since 1997, the Constitution does not allow the extradition of anyone who would be subject to any of those two forms of punishment at the requesting country. Unless binding assurances are given that the suspect will not be sentenced to either death penalty or life imprisonment, the extradition must be rejected.

Additionally, the Penal Code states that no person may be sentenced to a prison term longer than 25 years, whichever crimes he or she has been found guilty of committing. Therefore, a multiple murderer - no matter how many actual homicides - will not serve more than 25 years in prison. Likewise, in the case murder is committed in addition to other fellonies, the defendant will be sentenced to a single prison term, for a period no longer than 25 years, encompassing the applicable terms for each crime committed.

It should also be mentioned that, according the Portuguese Penal Code, only very rarely will a sentence of less than 5-years imprisonment be enforced. In fact, article 75, § 1, states that if an offence is punishable by a prison term or another non-detentive form of punishment, the court should opt for the non-detentive punishment "if this punishment will satisfy adequately the objectives of the criminal law."

Therefore, someone convicted to up to 5 years in prison will be put on probation or (if the sentence if for less than 3 years) will simply have the prison sentence suspended. If the convicted felon commits another intentional crime during the period of suspension or probation, he or she will serve fully the prison term. Probation or term-suspension usually will only be denied in the case of criminals with very long criminal records.

Homicide
Intentional murder, or homicide, is split into two categories, much like the American classification of murder in the first degree and murder in the second degree discussed above. Homicide, or wilful and intentional murder (art. 131 of the Penal Code), is punishable with a prison sentence of no less than 8 years and no longer than 16 years. Aggravated homicide(art. 132 of the Penal Code) is considered any wilful and intentional act in which death is provoked under particularly censurable or malicious circumstances, and is punishable with a prison term of no less than 12 and no longer than 25 years. The following circumstances are adequate to constitute a case of aggravated homicide:

a) When the murderer is a descendant or an ascendant, either by blood or adoption, of the victim.

b) When the victim is the spouse, former spouse, or person of the same or different with sex with whom the felon had a marital relationship, even if not a member of the same household, or the other parent of the son or daughter of the felon.

c) When the victim is especially defenceless, due to his/her age, handicap, illness or pregnancy.

d) When the murder employs torture or other act of cruelty to enhance the victim's sufferance.

e) When the murder is determined by greed, by the pleasure of causing death or suffering, for personal enjoyment or sexual gratification or any other futile motive.

f) When the murder is determined by racial, religious or political hatred or motivated by the colour, ethnical or national origin, sex or the sexual orientation of the victim.

g) When the murder takes place in order to prepare, facilitate, execute or dissimulate another crime, or to facilitate the escape from the authorities.

h) When the act is carried out in conjunction with, at least, another two people or when an especially dangerous mean is used to cause death.

i) When poison or any other insidious mean is used to cause death.

j) When the intent to commit murder has persisted for longer than 24 hours.

l) When the victim is the holder of public office, a docent, a minister of any religious cult, a judge or referee of any federated sport, and the act is related and caused by the exercise of said functions.

m) When the murderer is a public servant (e.g. a police officer) and the act takes place with serious abuse of authority.

Other than homicide and aggravated homicide, the Penal Code also has provisions for other forms of intentionally and unlawfully causing someone's death:

Privileged homicide (art. 133) - when the murder takes place under an understandable violent emotion, compassion, despair or other socially or morally relevant motive, such as to significantly diminish the murderer's degree of guilt. Punishment in this case is prison for 1 to 5 years.

Homicide by request (art. 134) - when the murder is carried out at the serious, constant and explicit request of the victim. Punishment is prison for 6 months to 3 years.
Inciting or assisting suicide (art. 135) - if someone incites or assists another person to commit suicide, he or she is sentenced to prison for 6 months to 3 years. The punishment is increased to a prison term of 1 to 5 year, in the case the victim is under 16 years old or has, in any way, his or her capacity impaired.

Infanticide (art. 136) - when the mother, under the disturbing influence of delivering the baby, commits murder while delivering it, or immediately afterwards. Punishment is 1 to 5 years imprisonment.

Abortion (art. 140) - abortion carried out without the consent of the pregnant woman is punishable with imprisonment for 2 to 8 years. Abortion with the consent of the pregnant woman carries a prison term of 6 months to 3 years; the same penalty applying to the woman consenting to the abortion. However, abortion is not punishable if carried out at a registered clinic or hospital, at the request of the pregnant woman, until the tenth week of pregnancy (or later, in some circumstances).

Manslaughter
Manslaughter, which art. 136 of the Penal Code refers to as homicide caused by negligence, is punishable with a prison term of no less than 6 months and no longer than 3 years, or a fine. If the death is caused by gross negligence the penalty the prison term is of 6 months to 5 years.

Additionally, unintentionally causing someone's death while committing a crime other than homicide is an aggravating factor in the determination of the punishment applicable to that specific crime. For example, if the crime of abandonment (exposing a defenceless person to a situation in which he or she will not to be able to cope with, therefore causing harm to the victim) results in the victim's death, the punishment is 3 to 10 years imprisonment, whereas the normal penalty would be 1 to 5 years. In another example, aggravated assault resulting in the death of the victim is punishable with 3 to 13 years imprisonment, whereas the usual penalty would be 2 to 10 years.

Conditional liberty
Inmates are usually not required to serve fully their prison terms. The Penal Code allows for the possibility of releasing them on conditional liberty ("liberdade condicional"), or parole. Parole is granted once one-half of the term has been served if both the following requirements are met:

One would reasonably expect the inmate, given the circumstances of his or her life, previous conduct, personality and evolution during incarceration, to behave in a socially responsible way without committing crimes, if released.

The release of the convict will not endanger the public order nor aggravate the community.
If the second requirement is not met (which would be the case when the particular crime has cause huge uproar in the community), the inmate will be released once two-thirds of the prison term have been served, as long as the inmate is reasonably expected to behave in a socially responsible way without committing crimes, if released. Even if the inmate is not expected to behave in a socially responsible way, he or she is released once five sixths of the prison terms have been served, unless the inmate refuses to be released. Parole last for the remaining period of the unserved prison term, but no longer than 5 years. Once the period of parole is fully served in a satisfactory manner, the remaining unserved prison sentence is declared void.

Status of convicts and felons
Convicts and felons may not suffer any effect from their criminal conviction other than deprivation of liberty for the period of incarceration, unless the sentence specifically establishes other effects in a direct and reasonable relationship with the offence committed. Convicts do not loose any right or entitlement due to their conviction, namely political rights. In fact, on election day polling stations are set up at the major prison establishments so that inmates may exercise their right to vote, if they so wish. Any criminal conviction registered on the felon's criminal record is stricken after a certain period of time, depending on the gravity of the offence. In the case of murder, this fact would be stricken from the murderer's criminal record once 15 years have elapsed from fully serving his or hers sentence without committing any other offence.

http://en.wikipedia.org/wiki/Murder#Portugal

beachy, however, posted back in February that missing persons cases always remain open until they are resolved, or the statute of limitations runs out. The statute of limitations on premeditated murder, the most serious crime which could potentially charged in connection with Madeleine's disappearance, is 20 years in Portugal.

http://3as.madeleinemccann.org/viewtopic.php?f=1&t=3889&p=65067&hilit=statute+of+limitations+murder#p65067

Edited to insert spaces to delineate three paragraphs.
Last edited by HawkEyes1 on Wed May 28, 2008 4:08 am, edited 3 times in total.
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby HawkEyes1 » Wed May 28, 2008 3:05 am

It is worth reading the following report, relating to the status of the Judiciary in Portugal through August 13, 2001, on the International Commission of Jurists website, where it is stated that was a serious backlog of cases on the courts. Of interest, as it may pertain to the Madeleine McCann Case, "...the President of the Supreme Court, as President of the High Council of the Magistracy, suggested enlarging the terms for investigation and preparation for trials in cases involving murder and other serious offences. He also proposed a review of the system of recourse and appeals available before the Supreme Court and the Constitutional Court."

Further, the case of Aquaparque was cited, in which two children were sucked down by a water fountain in a recreation ground and died, and the case was closed due to the application of the Statute of Limitations. The case had raised much concern among the population, as well as expectation that those responsible will be adequately punished.

http://www.icj.org/news.php3?id_article=2588&lang=en

I would hope there have been improvements in the Judiciary in Portugal since that time, especially with a Portuguese president heading up the Eurojust College!
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby blossom » Wed May 28, 2008 4:00 am

Thank you very much indeed for posting these articles HawkEyes. Very interesting and informative. The Portugese Judicial System is very different to any other i'm aware of.

Good point about CM and the guardian article. We never one straight answer!
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby HawkEyes1 » Wed May 28, 2008 4:20 am

I could not find the Guardian reference, blossom, but here is another viewpoint of the cancellation of the PJ reconstruction from today's Daily Mail:

Madeleine reconstruction scrapped after 'suspicious' McCanns refuse to return to Portugal to take part
By Daily Mail Reporter
Last updated at 12:54 AM on 28th May 2008

A planned reconstruction of the disappearance of Madeleine McCann involving her parents and their friends has been scrapped over suspicions about the motives of Portuguese police.

Kate and Gerry McCann and the so-called Tapas Seven - the friends they were dining with in the resort's tapas restaurant when Madeleine vanished - had been due to fly to the Algarve tomorrow.

The plan was to re-enact their movements leading up to the discovery that the three-year-old was missing. But a family friend revealed yesterday how some of them had pulled out after growing uneasy about the decision to stage the replay more than a year on.

The friend said the McCanns, both doctors from Rothley, Leicestershire, believe it would have done 'absolutely nothing' to help find their daughter not least because police had refused requests to televise it.

The couple and the Tapas Seven - friends Matthew and Rachael Oldfield, David and Fiona Payne, Russell O'Brien, his partner Jane Tanner and Dianne Webster, Mrs Payne's mother - were due to take part in the reconstruction at the Mark Warner resort in Praia da Luz.

Their decision to pull out will further damage relations between the police and the McCanns, who were made official suspects in the case in September.

Madeleine disappeared from the bedroom of the family's holiday apartment on May 3 last year. Her parents deny any wrongdoing.

A friend of the couple said: 'It was a case of all nine of them take part or it doesn't happen at all from the police's point of view, so the whole thing is off.

'The whole group have had grave reservations about the value of it. They want to help the police but keep asking themselves "Why now, more than one year on? What on earth is it going to achieve?"

'They also question why it was not to be televised and why police just want the nine and not other holidaymakers and staff to take part.'

Mrs McCann, 40, her 39-year-old husband and their friends had originally been asked to return to Portugal two weeks ago. But the date was extended because the couple had been undecided about the trip.

http://www.dailymail.co.uk/news/article-1022373/Madeleine-reconstruction-scrapped-suspicious-McCanns-refuse-return-Portugal-part.html
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby clear » Wed May 28, 2008 6:30 am

Sky news have slightly changed their report from yesterday - from 'unable to go' to 'refused to go.'
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