LEGAL QUERIES & THEORIES. BRIT/PT LAW EXPLAINED

Reference Forum for all information regarding translations and PT Law etc and other useful information.

PT LAW

Postby Maya » Fri Nov 30, 2007 3:23 pm

Lifted from the Mirror from PTLW78, in the name of public interest

I'm a Portuguese citizen. Incidentally, I am also a lawyer. While trying to remain unbiased, neutral and dispassionate, I thought it could be helpful to throw some light on:

i) the allegation that PJ has offered a deal to Mss. McCann in exchange of a confession; and
ii) the fact that no charges have been brought against Mr. and Mss. McCann

For the sake of objectivity and neutrality, facts are in ALL CAPS, my opinion in normal caps, so that you can distinguish the text of the law from my views on the case.

1 – PJ HAS NOT LEGAL POWERS TO SETTLE OR OFFER DEALS WITH CRIME SUSPECTS. IN FACT, NOR EVEN THE PUBLIC PROSECUTOR HAS SUCH POWERS. ONLY THE MAGISTRATE THAT JUDGES THE CASE IN A COURT OF LAW CAN DETERMINE THE PUNISHMENT /PENALTY APPLICABLE. I UNDERSTAND THIS TO BE QUITE DIFFERENT TO THE COMMON LAW JURISDICTIONS, NAMELY THE UK AND THE US.

This is common knowledge in Portugal. One of the first things taught in law schools is that our criminal system is not like in the (American) movies. The police do not cut deals. Nor the Public Prosecutor has the power to offer deals and settle with suspects. Only the Judge can determine the penalty. It is actually quite common for the judge to deviate from the accusation and proposed penalty presented by the Public Prosecutor (for example, the Public Prosecutor charges someone with murder and asks for a 20 years jail penalty but the Judge, while finding the defendant guilty, condemns him/her to serve only 18 years).

This is such a basic principle that no detective would try to pull this stunt with a lawyer present.

2 – ONLY THE CONFESSION MADE DURING A COURT HEARING IS LEGALLY VALID (SECTION 314 OF THE CODE OF CIVIL PROCEDURE).

It seems unlikely that the PJ would push for a confession that it is not legally valid. Of course that a confession would be a huge breakthrough in the investigations as it would rule out other scenarios and allow the police and the Public Prosecutor to build a case, but if Mss. McCann later (i.e., during the court hearing) denies what she has confessed, the originally confession cannot be considered by the Judge.

On a side note, this is why the questioning at the PJ is not recorded. Contrarily to what a British gentleman was saying this afternoon on SkyNews, the reason for not recording the interview is not archaism or lack of technical means – it is actually to protect the suspect against something he/she may later regret.

3 – PJ DOES NOT HAVE THE POWER TO CHARGE MR. AND MSS. MCCANN. THE PJ ROLE IS TO CONDUCT AN INQUIRY AND PUT TOGETHER THE FACTS. BASED ON THE FACTS GATHERED BY THE PJ, IT IS UP TO THE PUBLIC PROSECUTOR TO CHARGE (OR NOT TO CHARGE) THE SUSPECTS. THE PUBLIC PROSECUTOR HAS BETWEEN 6 AND 12 MONTHS (DEPENDING ON THE SPECIFIC CIRCUMSTANCES OF THE ALLEGED CRIME) FROM THE MOMENT ON WHICH THE SUSPECT IS NAMED "ARGUIDO" TO DECIDE IF IT PRESENTS OR DISMISS CHARGES – SECTION 276 OF THE CODE OF CIVIL PROCEDURE.

It seems that the focuses being placed on the fact that no charges have been brought against Mr. and Mss. McCann is deliberately trying to pass the message that the evidence is weak. Well, I don't know if the evidence is weak or strong. What I do know is that from a procedural point of view there could never be charges at this stage of the process.

*

Personal feelings now. I am trained to and effectively believe that anyone is innocent until proven guilty and I am therefore applying this principle to my personal assessment of this case. I also have no problems admitting ,not I feel ashamed or inferior to acknowledge, that the British police is technologically more advance that the Portuguese and probably more experienced – it is a matter of scale. What I would expect from a serious corporation such as SkyNews – on which I have relied on many different occasions for information – is neutral coverage of the story. I would expect SkyNews to investigate Portuguese law before giving any credibility to the hysteric reaction and false accusations made by the members of Mr. and Mss. McCann family. They went to the point of cutting the Portuguese lawyer out the air.

The sister of Mr. McCann is lying. Such lye seems to be an attempt to make the PJ look desperate. Having been on the other side of PJ interviews many times before, I can assure that they never get desperate.

As a lawyer, I found the gentlemen that commented on this case for SkyNews during the afternoon unprofessional and incompetent. As a man, I think they are plain i*****.

I am not an English native speaker and I apologize for the grammatical and language errors, but I hope this helps clarifying the legal implications of what happened today.
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Postby Maya » Fri Nov 30, 2007 3:24 pm

the bbc explanation

How is arguido status given and what does it mean?

Under Portuguese law either the police or a person being questioned can request that they be formally named as a suspect, a process called arguido.

Artur Rego, a Portuguese lawyer, told BBC News: "Arguido is the person who has been accused of being the perpetrator.

"This is just an accusation made exactly at the end of the investigation."

A person can ask for arguido status if they feel the line of questioning is implying that they are a suspect. This gives them more rights than a witness would have.

What rights does an arguido have?

Arguido status gives a range of legal protections, such as the right to remain silent and the right to a lawyer during questioning.

Mr Rego said: "Sometimes when they [the police] suspect someone, they call that person in as a witness.

"They don't constitute him as arguido and they extract as much information from him as they can, because as a witness he cannot refuse to collaborate with the police.

"Now the moment he is constituted as arguido, as the defendant, then he can not only refuse to answer questions because they can incriminate him, but also he has the right to be accompanied in the questionings by his own solicitor."


Once someone is an arguido they can be arrested, but only if there is sufficient evidence.

What action can the courts take against an arguido?

The police can use their powers to bring the suspect before a judge to ask for restrictions to be imposed on their movements.

If they do, they could be banned from leaving their house or the area, or held in custody while the case continues.

In this case, the suspect is not subject to a judge's order, but has signed an identity and residence statement.

It prevents the person moving house or leaving the country. If they stay anywhere other than their given place of residence for more than five days they have to notify police.

http://news.bbc.co.uk/1/hi/uk/6657977.stm
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Postby Maya » Fri Nov 30, 2007 3:24 pm

From Astro:

From the Portuguese Penal Code:

Artigo 138.┬║

Exposição ou abandono

1 - Quem colocar em perigo a vida de outra pessoa:
a) Expondo-a em lugar que a sujeite a uma situação de que ela, só por si, não possa defender-se; ou
b) Abandonando-a sem defesa, em razão de idade, deficiência física ou doença, sempre que ao agente coubesse o dever de a guardar, vigiar ou assistir;
├® punido com pena de pris├úo de 1 a 5 anos.

2 - Se o facto for praticado por ascendente ou descendente, adoptante ou adoptado da vítima, o agente á punido com pena de prisão de 2 a 5 anos.

3 - Se do facto resultar:
a) Ofensa ├á integridade f├¡sica grave, o agente ├® punido com pena de pris├úo de 2 a 8 anos;
b) A morte, o agente ├® punido com pena de pris├úo de 3 a 10 anos.



Article 138

Exposure or Abandonment

1 - Whom endangers the life of another person:
a) By exposing her in a place where the person is subject to a situation which she cannot defend herself from on her own; or
b) By abandoning her in a defenseless state, for motive of age, physical defect or illness, when the agent had the duty to guard, watch or assist to the person;
is punished with a prison term of 1 to 5 years.

2 - If the fact is practised by an ascendant or descendant, adoptant or adoptee of the victim, the agent is punished with a prison term of 2 to 5 years.

3 - If the fact results in:
a) Serious offense to the physical integrity, the agent is punished with a prison term of 2 to 8 years;
b) Death, the agent is punished with a prison term of 3 to 10 years.
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Postby Maya » Fri Nov 30, 2007 3:25 pm

Posted by Li on MF 16.11.07:

Portuguese law - the 'arguido' status
Mediabeak would like to thank an anonymous comment contributor on our previous post about the McCanns.

Given the frustration at the lack of new news coming out of the Madeleine McCann investigation it was easy to point the finger at the much maligned investigation and secrecy laws which bind it. While it would not be unfair to say that there were certain shortcomings in the early stages of the investigation, these were perhaps added to and distorted by mistaken understanding of the Portuguese 'arguido' suspect status and secrecy surrounding investigations. We are used to the way contempt laws work in the UK or the way they have minimal meaning in other jurisdictions. While the UK contempt laws seek to secure the administration of justice and its - and those concerned (jury, witnesses, public) with it who may be influenced or prejudiced, the Portuguese system focuses heavily on the preceding investigation. In the UK strict liability contempt is engaged when someone is arrested, whereas in Portugal, the 'arguido' status applies to anyone who is made a suspect (arrest not being necessary)or wants to be protected by the system.

Mediabeak thinks its time to contribute some more information about the system we have been quick to criticise. We haven't edited our anonymous friend's submission and are posting their contribution below:

The arguido status

In Portuguese law a person is constitued as an arguido when she or he is suspected of having committed a crime.

A person can request to be made "arguida" because he or she will benefit from rights that he/she does not have as a witness. Apart of the obligation of being accompanied by a lawyer when giving depositions in front of police authorities, the arguido has the right to remain silent and not reply to any questions. This means that as a potential suspect he or she is acting in their own defence. A witness by law is obliged to reply to all questions.

A person is constituted arguido during the investigation phase when sufficient evidence is collected to formulate an accusation. At that time, the less serious of the coercive sanctions which is the "term of identity and residence" is applied to the arguido. This term can be translated as a kind of conditional liberty where the arguido is obliged to inform the police authorities whenever he/she is absent for more than 5 days. An arguido can also be submitted to other coercion measures, the most severe being the "preventive arrest", which is usually applied when there is the danger of escape, disturbance of the investigation, possibility of destroying evidence, etc.

Secrecy of justice

The notion of secrecy of justice means a special jurisdiction obligation that applies to any person with direct knowledge of an act or document of the penal procedure. That person must comply to that secrecy, meaning he/she is forbidden to talk or reveal the content of that act or document.

The secrecy of the inquiry or investigation aims to satisfy the functionality of the juridical machine in the preliminary phases of the process. The arguido cannot be granted access to clues and evidence collected during the investigation since there might be over-riding interests such as: national security, witnesses protection, efficacy of the investigation and the obtaining of evidence.

The aim of the secrecy of justice is to ensure the secrecy of the criminal procedure, and allows also the guarantee that justice is made in an independent and unbiased way without the interference of other sovereign organs. Interference is also prevented from pressure groups or persons with personal (or institutional) power able to spread erroneous information campaigns through the media, harming the discovery and preservation of evidence and thus hindering the conclusions of the penal procedure.

Mediabeak thanks 'anonymous' for this submission.

http://mediabeak.blogspot.com/.....ml
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Postby MCXLIII » Thu Dec 27, 2007 1:27 pm

Posted by xklamation on DM Forum on Thu Dec 27, 2007 12:49 pm


Vivida you're such an arriviste!

Anyway, enjoy the reading:

"The comments by Charon on the McCann case are quite right and that presumption of innocence should be maintained but so should the presumption of common sense.

The Portuguese criminal justice system is suffering from a hangover from the days of the Junta. The investigative process is shrouded in secrecy but remains fair non the less and suspects are still innocent until proved guilty. One thing that people should bear in mind is that here in the UK the parents of Madeline McCann would have been suspects from day one of the investigation and there would have been just as much media frenzy generated.

The CATCHEM database used by police on investigations into child disappearences indicates that 80% of missing children have been killed either by parents or close relatives and that the snatching of children by roving paedophiles is actually quite rare.

The media have been feasting off the idea that naming the parents as 'arguido' is something terribly unfair and that the Portuguese police are somehow corrupt or incompetant. This is a formality in the Portuguese criminal justice system and allows for questions to be put that are not allowed before the formal declaration that someone is a suspect. It is no different in principle to the Police and Criminal Evidence Act caution or the Miranda warning. Still why ruin a good story by telling it as it is!

We don't formally allocate suspect status in our criminal justice systems but we do nevertheless treat all witnesses as in some way 'suspect' and the last person to see the victim alive is usually included in the list of suspects.

I teach criminal investigation and am very familar with the evidence gathering process in the UK, US and Europe. They are different in style but it is quite silly to think that the UK is somehow a more sensitive system.

There has clearly been a fiasco in the leaking of alleged DNA evidence detail to the press and this has hurt the family unecessarily. Our media is the culprit however as they have plenty of access to people who could have put them right on the significance (or lack of) of this from the outset.

Trust no one said the lonely cop!

Regards

Barry Turner
Lecturer in Criminal Investigation
Department of Forensic and Biomedical Sciences
University of Lincoln

Taken from this blog: http://charonqc.wordpress.com/2007/09/2 ... innocence/


Article 84: http://www.gddc.pt/
Duty of secrecy

1. Public Prosecution Service magistrates may not make declarations or comments regarding proceedings, except, when given superior authorisation, when this is for the defence of honour or for the fulfilment of another legitimate interest.

2. Information which is directed at the fulfilment of rights and legitimate interests, namely that of access to information, and which is not a matter covered by the secrecy of justice or by professional secrecy, is not covered by the duty of secrecy.

and: the principle applied was that justice should be administered in public except in the initial stages of the investigation; in other words, secrecy was maintained until the public prosecutor's department had taken a decision to prosecute. Secrecy of investigation was an inherent part of Portuguese doctrine and tradition, and was regarded as a safeguard for the accused, who was presumed innocent, and as a means of checking evidence more effectively.

from here: http://www.gddc.pt/direitos-humanos/por ... glish.html
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Postby kizzy » Sun Dec 30, 2007 3:35 am

You should all enjoy this - especially the independence to "look up" Portuguese law. Enjoy!

The Portuguese legal system in English

http://www.gddc.pt/legislacao-lingua-es ... glish.html
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LEGAL QUERIES & THEORIES. BRIT/PT LAW EXPLAINED

Postby mickey1 » Sat Jan 26, 2008 6:51 pm

A thread for anyone with a legal question which one of our resident experts may be able to answer. Legal conundrums, police methods etc.

Or if you have something interesting on legal issues which is relevant to the investigation.
"Never give in, never give in, never; never; never; never - in nothing, great or small, large or petty - never give in except to convictions of honor and good sense" [Winston Churchill]
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Re: LEGAL QUERIES & THEORIES. BRIT/PT LAW EXPLAINED

Postby mickey1 » Sun Jan 27, 2008 12:15 pm

If Metodo3 are illegally operating in Portugal but they are employed by the fund as in the limited company, who would actually get done for contempt/wasting police time?? Either in Portugal or the UK? Same as to fraud charges??

Have the Mcs distanced themselves from prosecution in this way as all comments are from Clarrie or a 'friend' unnamed?

any answers gratefully received
"Never give in, never give in, never; never; never; never - in nothing, great or small, large or petty - never give in except to convictions of honor and good sense" [Winston Churchill]
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Re: LEGAL QUERIES & THEORIES. BRIT/PT LAW EXPLAINED

Postby HawkEyes1 » Sat Feb 02, 2008 3:30 am

see also OP thread on THEORETICALLY WHEN CAN A DEATH CERTIFICATE BE ISSUED at:

viewtopic.php?f=5&t=2269
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Re: LEGAL QUERIES & THEORIES. BRIT/PT LAW EXPLAINED

Postby HawkEyes1 » Sat Feb 02, 2008 3:31 am

Last edited by HawkEyes1 on Sat Feb 02, 2008 3:34 am, edited 1 time in total.
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Re: LEGAL QUERIES & THEORIES. BRIT/PT LAW EXPLAINED

Postby HawkEyes1 » Sat Feb 02, 2008 3:33 am

see also OP thread on CODE MADELEINE at:

viewtopic.php?f=5&t=1902
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Re: LEGAL QUERIES & THEORIES. BRIT/PT LAW EXPLAINED

Postby HawkEyes1 » Mon Feb 18, 2008 11:21 pm

See also UPDATE ON THE STATUS OF THE ROGATORY LETTERS at:

viewtopic.php?f=1&t=2037&st=0&sk=t&sd=a

Lots of legal aspects of this case are being debated here, including laws relating to Mutual Legal Assistance and European Arrest Warrants.
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