The Legal Aspects of this Case

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

Re: The Legal Aspects of this Case

Postby Fenugreek » Sun May 25, 2008 2:23 pm

Isn't the reconstruction an obligation of the investigation. If no one turns up, the PJ will note it and inform the judge that the arguidos failed to turn up. I imagine the judge will then draw the conclusion that they don't take their testimony seriously and potentially dismiss it.

I do think the friends will turn up though (I know, swimming against the tide but I think they will be there!)
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Re: The Legal Aspects of this Case

Postby kerry » Sun May 25, 2008 2:27 pm

In England the judge directs the jury in the way that the judge thinks the verdict should go. I wouldn't have thought that the jury could get away with declaring someone innocent if all of the evidence pointed to them being guilty. The judge will direct the jury a certain way and will interfere unless it's a case that could go either way surely?
So not much different to a panel of judges imo.
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Re: The Legal Aspects of this Case

Postby pear » Sun May 25, 2008 2:29 pm

Fenugreek wrote:Isn't the reconstruction an obligation of the investigation. If no one turns up, the PJ will note it and inform the judge that the arguidos failed to turn up. I imagine the judge will then draw the conclusion that they don't take their testimony seriously and potentially dismiss it.

I do think the friends will turn up though (I know, swimming against the tide but I think they will be there!)


I don't think the reconstruction is an obligation. The Code says it is something to do if it is useful to get to the truth of the facts.

As to the legal dance, I have no idea what is actually happening: my guess is that the PT lawyers will avoid by all means that the McCanns refuse to go on a official notification, but any means to prevent the reconstruction to happpen bar that will be good. Now, what are the consequences, in a context of MLA, I have no idea.
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Re: The Legal Aspects of this Case

Postby bohhee » Sun May 25, 2008 9:31 pm

pear wrote:
bohhee wrote:if they dont show up for reconstruction, what's next step for PJ if they want to charge?


I certainly hope they don't depend on that reconstruction to bring charges! As I see it, it would wrap nicely their theories and it would (probably) put definitely to rest the abduction case. But I suppose that, even without it they can bring charges, anyway, as soon as they consider that they gathered all the information available to them and that there are no lose hands (lose hands that is in their power to tie, that is).


Pear, thanks a mil.

I'm aware reconstruction is optional to prosecution. The objectives and attendance of it are anyone's guess. I'm exasperated that the McCAnns are mocking the judiciary systems and look like getting away with Murder! What good are evidence if cannot be used against them. If despite all the evidence pointing to them being perpetrators but only neglect charges can be leveled - how is justice for Madeleine to be had?

Unless the transport of the physical corpse was seen captured on cctv, or unless corpse dna is 101%, concealment charge is left wide-open to attack from Defence team.

The way I see it concealment is such a paradoxical issue to bring charges. If PJ have enough evidence to level charges in this aspect, then questions should be posed to the disposer: how come madeleine corpse was on your personal belongings? how come you had her body? where did you get it? what did you do to/with it? why didnt you report the death?...etc etc. In which case the disposer cannot answer without incriminating him/her self. If disposer were to deny any knowledge of the body then it would leave questions open as to why corpse dna were found in their belongings?

With neglect? Cadaver - death would have had to occur hours earlier than the hoax alarm claim which means effectively Maddy wasn't alived to be neglected on the May3rd. As for McCanns timeline, a magic wane will be needed to explain away cadaver, disposal, surgical style cleaning of apt in that 'small window of opportunity'.

The McCanns know jolly well the PJ know they had done it; they also know PJ cannot prove who did it (unless someone in the know grass on them). I doubt any of their friends would grass on them? The snake will always be found out and what's the consequence for the snake? The value of the worth will be heavily weight. T7 concerns are most likely to clear themselves rather than to implicate McCanns unless unavoidable. They certainly are not obliged to tell PJ which of the McCAnns did it. As for G & K slugging off each other ....what will it need for that to happen GOK. Unless they are cornered inevitably ...I think pig will fly before than happens.

The PJ know that they know the PJ know it; and they know that the PJ know that they know the PJ know it.

If proofs are in abundant Maddy died in 5A, then how and what are PJ going to charge the McCanns with? This complex case has counfounded me that I wonder what are PJ going to do with the evidence. What will be their next steps assuming reconstruction is unlikely to materalised?
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Re: The Legal Aspects of this Case

Postby pear » Sun May 25, 2008 10:38 pm

Lose hands... sheesh. I definitely should reread myself :roll:

I have no idea what the next steps will be, because I have no idea what evidence the PJ has. It certainly looks like the prosecution intends to bring charges. They must have proof of death, and of body disposal. The point seems to be: did Madeleine die in the presence of one or both her parents (homicide with negligence, that is, non intentional, more likely) or without any adult around (neglect followed by death, more likely)? We'll see :D
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Re: The Legal Aspects of this Case

Postby Salomon ES » Mon May 26, 2008 9:04 am

I don't know if this will help clarifying some issues. But it reflects what I think is the current legal situation.

There's been a lot of speculation and misinformation about the reconstruction. But the bottom line IMO is that the McCanns don't want to go back but they have to go (within the remit of their arguido status). The T7 are therefore the obvious escape route for the McCanns. Without the T7 going, there's no reason for the reconstruction to take place. And because the T7 are not arguidos there's no legal way to get them to participate in the reconstruction. You could then argue that the PJ should make the T7 arguidos, and then request their presence for the reconstruction. I wouldn't exclude this happening, but I would however question if technically this would be possible to be achieved before August (when the the investigation deadline expires).

The key question to me is "how important is this reconstruction, and for what?".

Contrary to some, I don't think that the request to have this reconstruction is some highly sophisticated plan from the Policia Judiciaria to show the world that the McCanns and their friends are unwilling to cooperate with police and therefore are involved in Madeleine's disappearance. Anyone with some basic understanding of the PJ and the judicial system in Portugal will know very well that these are not games that the authorities play. If they have asked for this reconstruction, it's because it is necessary - and maybe essential to progress with the case from a legal standing (and not to discredit the McCanns vis a vis public opinion).

The second question is why exactly is this reconstruction necessary - and maybe essential? Some have argued that it will discredit the abduction theory in a court of law and show that some have lied. That is possibly true. But in that case alone it would have been more likely that the request for a reconstruction would take place after charges are brought against one or several individuals, ie in the instructory phase, after the investigation phase has been concluded and before the Trial phase is started. This would allow the instructory judge to order the reconstruction - imposing an obligation on all parties to attend the motion. The fact that this request for a reconstruction occurs now (dependent on the goodwill of the witnesses), suggests that the reconstruction is necessary - perhaps essential - to pinpoint who exactly should be charged (ie before conclusion of the investigation phase) and not necessarily to prepare the prosecution case in court.

Finally, and assuming that this reconstruction is necessary - maybe even essential - for charges to be pressed against someone (and not only for the prosecution to build a robust case to be used in court proceedings), one has to question if without a reconstruction there will ever be charges against anyone. Unfortunately, whilst I'm led to believe by the media that there is unequivocal evidence that Madeleine died in the apartment and that she was not abducted, I doubt that there is sufficient evidence that will determine who performed the exact actions that led to her alleged death and subsequent disappearance.

Under these conditions, I'm tempted to think that without a reconstruction there will be no meaningful charges against anyone. Perhaps charges for abandonment or obstructing justice but I doubt it that the prosecution will be able to substantiate what the investigation believes really happened to MAdeleine.

Would be interested in different views.
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Re: The Legal Aspects of this Case

Postby pear » Mon May 26, 2008 9:15 am

Salomon ES wrote:The second question is why exactly is this reconstruction necessary - and maybe essential? Some have argued that it will discredit the abduction theory in a court of law and show that some have lied. That is possibly true. But in that case alone it would have been more likely that the request for a reconstruction would take place after charges are brought against one or several individuals, ie in the instructory phase, after the investigation phase has been concluded and before the Trial phase is started. This would allow the instructory judge to order the reconstruction - imposing an obligation on all parties to attend the motion. The fact that this request for a reconstruction occurs now (dependent on the goodwill of the witnesses), suggests that the reconstruction is necessary - perhaps essential - to pinpoint who exactly should be charged (ie before conclusion of the investigation phase) and not necessarily to prepare the prosecution case in court.

Finally, and assuming that this reconstruction is necessary - maybe even essential - for charges to be pressed against someone (and not only for the prosecution to build a robust case to be used in court proceedings), one has to question if without a reconstruction there will ever be charges against anyone. Unfortunately, whilst I'm led to believe by the media that there is unequivocal evidence that Madeleine died in the apartment and that she was not abducted, I doubt that there is sufficient evidence that will determine who performed the exact actions that led to her alleged death and subsequent disappearance.

Under these conditions, I'm tempted to think that without a reconstruction there will be no meaningful charges against anyone. Perhaps charges for abandonment or obstructing justice but I doubt it that the prosecution will be able to substantiate what the investigation believes really happened to MAdeleine.

Would be interested in different views.


Very good point re the instruction.

You might very well be right that this reconstruction is essential to pinpoint who to charge (and yes, I agree that the police does their job from a legal point of view, not from an anti-PR pointo of view). But it could also be WHO ELSE to charge as accomplices, isn't it? The PJ has always said (through Alípio, namely) that they they think various people and various cars have been involved. To wrap up the case, I suppose the Prosecution must say exactly who helped dispose of the body, for example. No?
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Re: The Legal Aspects of this Case

Postby tylersmum » Mon May 26, 2008 9:21 am

Put simply an arguido cannot be forced to take part in a reconstruction as it would be a breach of their human rights.
Under ECHR a suspect has the right not to incriminate themselves.This is the right that allows an arguido not to answer questions,this right also extends to acts that may incriminate as well as words.
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Re: The Legal Aspects of this Case

Postby January » Mon May 26, 2008 9:28 am

What if the PJ's have given the Tapas 7 every chance to return by being flexible with the dates.

They then wait to see who resists hardest.

They then do the reconstruction with all who turn up and put in a substitute to act out the missing Tapas 7's statement.

They then prove whether the missing Tapas 7 was telling the truth based on the outcome

They then make the missing Tapas 7 arguidos and order them back to Portugal (if their statement does not stand up).

imo if any member of the Tapas 7 wants to have themselves portrayed in the best possible light they should be one of the 'willing and able to return' brigade.

Otherwise others might take advantage of them not being present to get their side across.

On a practical level, how difficult will it be to close off that area of the Ocean Club from holidaymakers and journalists for the duration of the reconstruction?
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Re: The Legal Aspects of this Case

Postby January » Mon May 26, 2008 9:31 am

tylersmum wrote:Put simply an arguido cannot be forced to take part in a reconstruction as it would be a breach of their human rights.
Under ECHR a suspect has the right not to incriminate themselves.This is the right that allows an arguido not to answer questions,this right also extends to acts that may incriminate as well as words.



If doing the reconstruction would incriminate themselves doesn't that just prove that they have lied about where they were and when?

How can it be a breach of human rights to be caught out in a lie?
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Re: The Legal Aspects of this Case

Postby pear » Mon May 26, 2008 9:42 am

tylersmum wrote:Put simply an arguido cannot be forced to take part in a reconstruction as it would be a breach of their human rights.
Under ECHR a suspect has the right not to incriminate themselves.This is the right that allows an arguido not to answer questions,this right also extends to acts that may incriminate as well as words.


Yes, I think that is putting it very simply.
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Re: The Legal Aspects of this Case

Postby tylersmum » Mon May 26, 2008 10:06 am

January wrote:What if the PJ's have given the Tapas 7 every chance to return by being flexible with the dates.

They then wait to see who resists hardest.

They then do the reconstruction with all who turn up and put in a substitute to act out the missing Tapas 7's statement.

They then prove whether the missing Tapas 7 was telling the truth based on the outcome

They then make the missing Tapas 7 arguidos and order them back to Portugal (if their statement does not stand up).

imo if any member of the Tapas 7 wants to have themselves portrayed in the best possible light they should be one of the 'willing and able to return' brigade.

Otherwise others might take advantage of them not being present to get their side across.

On a practical level, how difficult will it be to close off that area of the Ocean Club from holidaymakers and journalists for the duration of the reconstruction?


An arguido cannot be ordered back to Portugal.

A reconstruction has very little evidential value.
Even if one proves that one of the Tapas 7 are lying that is not evidence against the McCanns only against the person who lied.Unless the lie is so signifcant that it can lead to charges there is no point.
None of the Tapas 7 except JT give any form of evidence that would support an abduction.
As to JT she saw a man who MAY have been carrying a child so even if accepted as true it is not conclusive proof of anything.

Edited to add;
I believe the most likely reason for the reconstruction request is to get all the Tapas 9 back to Portugal to be interrogated properly not under the restraints of the MLA guidelines
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Re: The Legal Aspects of this Case

Postby Salomon ES » Mon May 26, 2008 10:27 am

I'm not sure we're talking about the same thing... indeed I'm not sure some of us know what we're talking about.

Apologies if I missed something, but why are some quoting the European Convention on Human Rights to discuss what is an administrative feature of Portuguese criminal law?

Frankly... i wouldn't want to entertain a discussion on tangents... but just to try and clarify some points:

The arguidos have been given termo de identidade e residencia (TIR). This status gives them both rights and obligations. Inter alia this means that they will be required to cooperate with the investigation and if asked they will need to attend any further hearings or interviews that the investigators deem necessary. They have agreed to do exactly that before they left Portugal, and have appointed their legal representatives in Portugal (Mr Pinto de Abreu and Rogerio Alves) for that purpose.

If the investigators decide that they need their presence for further acareaçoes (motions) including a reconstruction, they will contact the legal representative of the arguidos (a lawyer accepted in the Portuguese bar) and ask for his client's presence. The arguidos - through their lawyers - may then propose another time by giving a justification for their inability to attend. The terms of the reconstruction also include the presence of legal counsels for the arguidos, and indeed they preserve their right to silence as they would if they were being interrogated.

If they are asked to attend any motion and fail to attend without a valid justification they will be deemed in breach of their obligations as arguidos. They will therefore be in violation of portuguese criminal law.

So whichever way you look at it it's ultimately up to each citizen to comply or violate the law. But like every citizen they will be responsible and suffer the consequences of their decisions.
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Re: The Legal Aspects of this Case

Postby Fenugreek » Mon May 26, 2008 10:38 am

Saloman, supposing the McCanns and friends refuse to attend.

What consequences will this have on a subsequent court case, do you think?

Is it possible the witness statements for the defence from the friends could be discounted?
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Re: The Legal Aspects of this Case

Postby pennylane » Mon May 26, 2008 10:58 am

Salomon ES wrote:If they are asked to attend any motion and fail to attend without a valid justification they will be deemed in breach of their obligations as arguidos. They will therefore be in violation of portuguese criminal law.

So whichever way you look at it it's ultimately up to each citizen to comply or violate the law. But like every citizen they will be responsible and suffer the consequences of their decisions.


What sort of penalties/consequences are likely for breaching their obligations as arguidos, and how would they be enforced (under the circumstances) please?
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