Dura Lex Sed Lex

1. Introduction

Sometimes when confronted with a mountain that we have to climb it is not important how we got to be there, by its base, looking up but what is important is both having to climb it and the reason why.

It’s only important to just focus on the task ahead and not lose a moment dwelling on what happened before.

This is such a situation.

We will not explain why we’re breaking from the break again, which we in reality did a few days ago on Facebook, nor about the short but eventful trip it has been from then to now.

As a background to what we want to say today will be the following:

(a) Concerning the contest to Mr Amaral’s appeal made by the McCanns on July 13, Mr Tony Bennett, among other considerations, also had this to say: “this case has now been running in the incompetent and corrupt Portuguese judicial system for 6 years and 1 month”;

(b) There was a reaction to Mr Bennett having called the Portuguese judicial system incompetent and corrupt;

(c) Mr Bennett counter-reacted by first showing through some studies how corrupt a country Portugal was and then making an 18-point list about how the Portuguese justice system had been unfair to Mr Amaral.


2. Needless insult

This list made up by Mr Bennett showed, in our opinion, that he had some misconceptions about the Portuguese judicial system that apparently made him draw wrong conclusions about it that in our opinion he shouldn’t have and because of these make unfounded criticism of it.

These misunderstandings needed, in our opinion, to be corrected as if Mr Bennett had reached such conclusions then so could others do the exact same.

About Portugal being corrupt Mr Bennett quoted various studies and media articles but all was about a perceived corruption and not a factual one.

Not saying there isn’t corruption in Portugal and we will soon show that there is evidence that there is.

Nor are we saying the studies quoted by Mr Bennett are untrue but if one takes a citizen from any country (including the UK) and one asks him if he thinks his country is corrupt or not he will most probably answer that it is one of the most corrupt in the world.

The citizen is not being dishonest. On the contrary. He’s being absolutely honest and responding with the knowledge he has and that is the reality of his life.

His opinion is based on his experience and with the ignorance of what the reality of other countries truly is. He doesn’t know how to compare his country to others and will evidently exaggerate the problems that affect him directly.

However, and that is what mattered, under scrutiny was the Portuguese judicial system being corrupt and incompetent and not the country itself.

The closest Mr Bennett came to addressing that issue was in these words he quotes, “scandals of corruption, recurring obstacles in pending investigations, crimes that go unpunished and new anti‐corruption policies that have no effect on these issues”.

However this happens to be said about Portugal but it could be said about UK or almost any other country in the world.

Portugal’s judicial system record against corruption seems to be impressive:

The “Casa Pia” process, sentenced a diplomat Jorge Ritto, the most popular TV presenter Carlos Cruz – active and alive – known at the time as “The TV Man”, and two other prominent members of society - Manuel Abrantes (deputy responsible for Casa Pia) and Ferreira Diniz a doctor known as the “Ferrari doctor”. In this process, a former minister Paulo Pedroso was under preventative prison and was released without charges. Pedroso was a member of parliament when he was arrested.

The process concerning the way submarines were purchased for the Portuguese Navy, in which the current Deputy Prime Minister and then Minister of Defense Paulo Portas was involved. It was archived, no charges.

The “Freeport” process, which involved former Prime Minister José Sócrates when he was a minister in a previous government. No charges.

The “Face Oculta” process, in which a former minister Armando Vara and José Penedos, ex-president of the public electrical company REN, sentenced both to 5 years in prison.

The “Homeland” process, which sentenced Duarte Lima to 10 years in prison for fraud. Lima was a prominent PSD politician having been this party’s parliament leader.

The “BPN” process, involving former ministers Oliveira e Costa, then banker, and Dias Loureiro. They were charged but acquitted in court. Oliveira e Costa was under preventative prison.

The Isaltino Morais process, he was the most popular head of a township in the country (he was the President of Oeiras township at the time) and was sentenced to 2 years in prison for money laundering and fiscal fraud.

The ongoing “Monte Branco” process, in which Ricardo Salgado is currently an arguido. Salgado, banker and head of BES, the biggest private bank when it was dissolved August last year. Salgado was then considered the most powerful man in Portugal. Then he had the epithet of “Dono Disto Tudo” or literally translated “The Owner of All This”;

The ongoing “Operação Marquês”, in which ex-Prime Minister José Sócrates is under preventative prison, the former minister Armando Vara under house arrest with electronic monitoring among other very wealthy men who are also arguidos in this process;

Finally, the ongoing “Caso BES” process, in which the once very powerful banker Ricardo Salgado was very recently made an arguido and was subject to the coercive measure of house arrest.

The list above clearly shows that the Portuguese judicial system is fighting corruption at the highest levels of political and economic powers.

Safeguarding the presumption of innocence of all the above listed who are awaiting the outcome of their processes, what has been listed shows that there is corruption but also there is a judicial system set in fighting it where it matters in a way we do not see in other countries.

The politicians and bankers of a country may be corrupt but that doesn’t mean that the judicial system of the country also is. To make such an extrapolation is absurd.

But then Mr Bennett adds unfairness to his accusations against the Portuguese judicial system. One must note that although the initial question was about accusing a system of being corrupt and incompetent, Mr Bennett deflects the issue to unfairness. To be corrupt is always to be unfair to someone one way or the other but most often to be unfair doesn't mean one is corrupt.

And as we will see later, a system can be unfair and that doesn’t mean it is in any way corrupt or incompetent.

Mr Bennett uses the example of one citizen, Gonçalo Amaral, to show how corrupt, how incompetent and how unfair the Portuguese judicial system is according to him.

Can a single person, as in the case of Mr Amaral,  represent an entire system? We don't believe so even if Mr Bennett was right on all 18 points of his list, which he’s not.

Mr Amaral has been involved within the Portuguese judicial system in the following processes, that we are aware of:

#1 – Death of Joana Cipriano, investigation and trial. Closed.

#2 – Disappearance of Maddie McCann investigation. Archived and re-opened. Mr Amaral no longer has any relationship with it.

#3 – Torture of Leonor Cipriano, trial. Closed.

#4 – Libel against Marcos Aragão Correia, trial. Closed.

#5 – Damages suffered by the McCanns, trial. Ongoing.

To Mr Bennett, #2 to #5 clearly represent that the Portuguese judicial system has been unfair to Mr Amaral.

But as we will see, not even in #2 is he right and in all the other 3 counts he’s completely wrong.

About #5 we remind that the decision taken by the 1st Instance Court at the end of April this year has no effect as the process is still continuing.

Mr Bennett says the fact that the Book trial has taken 6 years and 1 month and one simply cannot foresee when it will end he claims “I rest my case” about the incompetence of the Portuguese judicial system.

As a man of the law Mr Bennett should know and apparently doesn’t, that each country has its own legal system and to establish parallels between any 2 is absurd.

For example, in the UK in a libel process the offending party has to prove it has not offended while in Portugal the burden of proof lies with the offended one. In criminal law, Portugal is inquisitorial while in the UK it’s an adversarial system. UK has juries in higher courts, Portugal doesn’t. UK has a life sentence, Portugal the maximum sentence is 25 years.

Besides, each country has its own legal schedules and timelines.

To accuse someone of incompetence because it follows schedules and timelines determined by law is wrong and is insulting.

One may be baffled by them but as they are what they are by legitimate law one simply has to accept them.

Unless Mr Bennett has evidence that a schedule was not adhered to by any of those involved he should simply be silent about linking the time the process has been going in a judicial system to that system being incompetent.

If that is all which Mr Bennett rests his incompetence case on then we think best he rethinks before making such hasty assertive judgements. Hasty judgements seldom are right.

It has taken 6 years, it could be more, it could be less and it simply is what it is and most importantly it is what is written in law.

In our post “Nobel Stupidity Prize of the Millenium” in January 2010, we warned very clearly of this. To consider it a problem, which we do, is to give an opinion which is to be respected but to consider it incompetence is just wrong.

A system that safeguards personal guarantees to the extreme is permeable to legal games. However the Portuguese judicial system was set up legitimately that way by those rightfully elected to do it.

Just to give an example, José Sócrates hasn’t been charged yet but by now over THIRTY judges have taken a legal decision about him, on various appeals and habeas corpus since he was arrested in November last year. His legal team has used all possible legal tools available to them by the system. This is taking the legal games to its allowed extreme, being allowed is the keyword. To be very clear, allowed legally.

These unquestionably legal manoeuvres deplete resources, both human and of time.

It’s true the process involving Mr Amaral’s book has been ongoing for 6 years but it has to be said it has been delayed in legal games by both sides of the fence.

One may not agree with the system as it exists and is designed. One may criticise it fiercely and harshly, one may say it’s inefficient. That is only an opinion to be respected but doesn’t constitute grounds to accuse it of incompetence.

One is allowed an opinion but what one may not do is to insult it just because where one lives things are done differently and/or better according to one’s opinion.

Using Mr Bennett as an example. He saw himself in a legal situation in which he felt had to sign an agreement. He breached that agreement and was sentenced because of that. Was the system corrupt? No. Was it unfair? Probably but it’s the law.

One must not confuse an unfavourable decision with corrupt or incompetent ones.

One must however note that the corrupt and incompetent system, the one Mr Bennett seems to say is after Mr Amaral like a vicious dog, is the same one which Mr Bennett recognises has decided wholly in favour of Mr Amaral.

And it’s the same corrupt and incompetent system Mr Amaral says he trusts.

We would also like to point out that if Mr Bennett’s intent was to help Mr Amaral, by calling the Portuguese judicial system corrupt and incompetent he’s doing exactly the opposite.

If the system is indeed corrupt and incompetent as stated by Mr Bennett (which we will say again it is NOT) would it be wise to call it corrupt and incompetent now just BEFORE it is taking a major decision that directly affects the life of a person we all care about?

In what way would that help Mr Amaral if indeed Mr Bennett was right? Wouldn’t that make a corrupt and incompetent system even more resolute in deciding against Mr Amaral?

As we said, fortunately Mr Bennett is not right as we will proceed to show by going over the points Mr Bennett has listed, so little harm is done.


3. Mr Bennett’s 18 points list

“1. Frustrating Amaral’s investigation. The Portuguese judicial system hampered Amaral’s investigation by restricting his ability to look at the historic ’phone records of the McCanns and their ‘Tapas 7’ friends.”

The law is clear and it states that telephone tapping of any private communication interception can only be made with a court order and it applies only AFTER that decision is taken.

Retroactive intrusion by the state in private communications is illegal. The judge allowed a record of telephone traffic i.e. numbers called and numbers dialled but not any its contents which is what the law states.

Mr Bennett’s expectations are that the judge should have gone against the law of the Portuguese Republic.

This was decided by the judge in Portimão and further validated by the Évora Appeal Court.

Not seeing any form of corruption and incompetence here.


“2. The long-running libel trial. After 6 years and 1 month, the Portuguese judicial system still cannot decide (a) whether Amaral libeled the McCanns and/or (b) whether his book ‘The Truth about A Lie’ should be banned.”

It is not a libel trial.

Portugal has many legal Codes, in which two deal with what we could call “infringement of the general law”: the Civil Code and the Penal Code.

Whatever is stated in the first, the Civil Code, are non-criminal offences, what is in the second, the Penal Code, is criminal. Libel or defamation is part of the second, so clearly a crime.

Libel (or defamation) in Portuguese Law is a criminal offence as contemplated in article 180 of the Penal Code.

In Common Law, “Libel” implies a defamatory comment, either written or spoken and, as per above, in Portugal defamation is under the jurisdiction of a criminal court and subject to the Penal Code dispositions.

The court proceedings to judge libel HAS to be a criminal court, in Portuguese a “Vara Criminal”.

What we have currently in the McCann v Amaral trial would be best translated as a Civil Law suit for damages.

To be precise, in Portuguese it is an “Acção de Processo Comum Ordinário, objecto: Factos Ilicitos (Vara Cível)”, which literally translated is “Normal Common Procedural Action, Object: Illicit Facts (Civil Court)”-

Note that it’s about illicit facts and not criminal ones.

The object of this case is to prove the relationship between proved illicit facts committed by the one who has breached a right of the others and the PERCEIVED harm caused to those who had their right breached and then establish the damages to be awarded.

The McCanns decided not bring a private criminal action via a lawyer with regards to the crimes of defamation but instead to bring a Civil Law Suit for Damages.

The verdict was achieved with basis on articles 484 and 483 of the Civil Code and also on numbers 1 and 2 of article 335 of the same code, within the scope of a right to a good name and a conflict of rights (i.e. between the right to a good name v freedom of speech).

Please kindly check the verdict and court details.

About the time the process is taking we have already addressed and will address again.

Fail to see corruption and/or incompetence. 


“3. He was denied ‘Legal Aid’ for the trial.”

Mr Amaral does not fulfil the criteria for legal aid. In a country where the minimum monthly wage is now 500 €uros it would be insulting to those in need, to those for whom legal aid was conceived to give such legal aid to Mr Amaral.

The criteria is determined by law and the law was simply followed. No unfairness.

No corruption or incompetence.


“4. It is probably the longest-running libel trial in the history of the earth; even now the appeal probably won’t be heard until October, and almost certainly, it will run for some good time after that.”

Again not libel. It is fascinating how persistent Mr Bennett uses the term even after Mr Amaral coming out publicly to clarify that it is not libel.

The civil law suit for damages was filed by plaintiffs who live outside Portugal (who have complained how bothersome it is to go to Portugal) and who have convened witnesses who also live outside the country.

This fact alone implies a complex logistic operation on notification and confirmation of presence.

It also requires translation services that are time consuming.

The appeal will probably take time, and rightfully so, as it means it is being properly studied and analysed in legal terms by a collective of Judges.

Like it or not, there are far more urgent cases than this in Portugal that need to be decided.

The world does not revolve around Kate and Gerry McCann or this case. Although it does make the news that is mostly due to media marketing than of priority given in legal terms. In fact when there was the computer glitch last year, the process was given a low priority.

In terms of visibility the case has much more relevance in the UK then it does in Portugal.

There is a limited number of judges responsible for both criminal and civil cases in first instance courts as well as the number of courts which has been reduced due to the economic crisis. Time consuming, yes, but with good reason.

The process is taking the time any other process in similar circumstances takes.

No corruption or incompetence of the Portuguese judicial system.


“5. That is fair neither to Amaral nor to the McCanns. Only the lawyers benefit, in terms of vastly increased fees. ‘Justice delayed is justice denied’ is a popular saying here. So too for Amaral. The continuing uncertainty and anxiety. The rising costs. The inability to ‘move on’. And on.”

Judicial costs in Portugal are a mere fraction of those in many other countries.

Mr Bennett shouldn’t judge, as we think he is doing, the costs based on his experience in the UK.

We’ll return the British popular saying quoted by Mr Bennett with 2 Portuguese ones: “to rush is the enemy of perfection” (a pressa é inimiga da perfeição).

In the ideal world each country would have an abundance of judges and courts, such is not the case in Portugal or anywhere in the world.

As mentioned above the trial has been delayed by both sides of the fence on several occasions, requires translation and availability from witnesses and plaintiffs to go to Portugal.

Is it fair? No, it is not but it can’t be done faster and one either follows what the law states or then uses google translate in court and a Star Trek “beam me up Scottie” system for all those convened.

And because it can’t be done faster it cannot be considered unfair. It is, again, just the way it is.

The uncertainty, anxiety, costs and inability to move on are the consequences of the way the system is designed and not because of corruption and incompetence as stated by Mr Bennett.

Mr Amaral is not being treated any different than any other person would be.


“6. The ex parte proceedings that Amaral never knew about. Three months after the McCanns issued their writ for libel damages, the Portuguese judicial system allowed the McCanns an ‘ex parte’ hearing (that is, the other party (Amaral) is not even told about it). Amaral wrote about it in Chapter 6 of ‘The English Gag’ (see ‘TERRIBLE NEWS’ thread, here: http://jillhavern.forumotion.net/t8856-terrible-news... ). He was in a restaurant when the owner ran out to him and said ‘I’ve just heard about it on the radio – your book’s been banned!’ This was a wholesale denial of natural justice and fairness to Amaral.”

Mr Bennett should please not confuse trials. This was a “Providência Cautelar” or an Injunction as it has been called, nothing to do with libel again.

We should clarify the term injunction that is being used when describing what happened in 2009/2010.

The procedural term in Portuguese is Providência Cautelar. Would translate it into Cautionary Action.

A Cautionary Action is requested by individuals and the other individual notified afterwards in several cases. It is a temporary measure until a full audience decides the case.

Unfortunately as reality shows that processes do go on for a significant period in time, it is a legal procedure used very often.

The system basically recognises it’s slow and provides the parties the possibility to request an “anticipation of the decision” to ensure that the effects desired are those that are achieved when the decision is finally taken.

To exemplify, 2 examples from Mr Amaral:

- banning of book, in case it is decided it is to be banned, then to do it only when final decision made then meanwhile the book would have been sold and read and the effect of banning would be nil in terms of dissemination of the information it contain;

- seizure of assets, same logic, if one was to wait until the end then the defendant upon realising he would lose the case would have time to change the property of his personal assets.

The procedure for the application of a Cautionary Action is a simplified one and is of an urgent nature, so much so that in many cases it does not require the presence of the person(s) to whom the injunction is against, should the judge decide that would risk the object or efficiency of the Cautionary Action.

Mr Amaral was not singled out by Cautionary Actions. As said, it’s a procedure commonly used.

The book trial began with a Cautionary Action to ban the book because it infringed McCann’s right to a good name because it COULD be defaming them.

The 1st Instance Court decided to implement the requested Cautionary Action and so the book was banned, the Appeal Court decided against that decision and allowed the book to be put on the stands again.

The McCanns appealed to the Supreme Court. After the appreciation of the Appeal Court’s decision the higher court decided that the Appeal Court’s decision was correct and that there were no grounds for appealing its decision, so refused the appeal.

The fact that Mr Amaral first heard of the decision from the media is because as experience has shown it seems that the connection to the media seems to work really fast when it comes to decisions that don’t favour Mr Amaral.

It has nothing to do with corruption or incompetence but with the way “sound waves” travel. He was treated unfairly by the media not by the Portuguese judicial system.


“7. Not only was this secret hearing grossly unfair (it would be unlawful in such proceedings in the U.K.), but it also took several truly draconian steps:”
a. immediate banning of his book
b. impounding all books printed but not sold
c. ordering delivery of the books by Amaral and his publisher to the lawyer acting for the McCanns
d. sequestering many of his property and other assets
e. denying him about one-third of his income”

Please see reply to #6. The Appeal Court decision on this Cautionary Action overturned, when it was legally competent to do so, the 1st Instance Court decision listed from a. to c.

Some of the items listed above (d. and e.) are part of the current civil law suit for damages and not of the Cautionary Action.

The draconian steps are but what is stated in the law and Mr Amaral was not singled out.

No corruption and no incompetence.

There are no such thing as “secret hearings” in Portugal. Not only would they have no legal value as they are absolutely illegal.

To make such a statement is to show ignorance about how the Portuguese judicial system works and about its limitations set by the Portuguese Constitution.


“8. The failure of the Lisbon Civil Court to follow the rulings of the Portuguese Appeal and Supreme Courts. Both courts were clear that Article 10 of the European Human Rights Convention: ‘Freedom of Speech and Freedom of Expression’ favoured Amaral’s right to publish. For whatever reason - corrupt or otherwise – the judge in the recent trial found a way to ignore these two rulings.”

The constant decisions of the Appeal Court and Supreme Court are jurisprudence and a source of law or law.

However, since we are talking about a case of a conflict of rights the judge decided totally within the law, although we personally don't agree with her decision.

That does not make it illegal, much less corrupt or incompetent. She applied the law as per her legal duties and boundaries and did not in any way circumvent this.

There are cases where what is being analysed that not everything is predicted in the written law and the judge has a margin for interpretation.

The fact is that here is a case of two conflicting rights. Freedom of expression and the right to a good name.

It’s on this point that the judge deemed necessary, which she was legitimately entitled to do, to source other jurisprudence to decide which right should prevail, in her legitimate opinion.

If law was simply black or white there would be no need for courts, judges or lawyers. It isn’t.

Disagree as we do, the judge acted within the law.

Especially since the matter being analysed, damages inflicted to individuals, is a very subjective one.

Moreover, one must not forget that on all other points the judge ruled in favour of Mr Amaral, so it cannot be considered unfair.

The damages awarded are in my opinion excessive and the decision is subject to disagreement but we STRESS, a legal one. We have already had the opportunity to consider it completely disproportionate but it’s neither corrupt nor incompetent.

It cannot be considered unfair as it isn’t considered effective by the Portuguese judicial system as this is now a matter for the appeals court to decide with its collective of Judges.

“9. The removal of Amaral as Investigation Co-ordinator. The Policia Judiciara (PJ) is part of the Portuguese judicial system, run by the Ministry of Justice. It was senior officials in the PJ, certainly influenced by the British Prime Minister at the time, Gordon Brown, who ordered Amaral to be removed from his post.”

Here Mr Bennett is right. we totally agree, although we do not know who the participants were, it was a clear manoeuvre to avoid a diplomatic clash.

However it must be said that when Mr Amaral gave his interview while heading the investigation he was aware that he would suffer some sort of consequence.


“10. The inadequate Attorney-General’s Report. In July 2008, the Attorney-General’s final report was published. It recommended that the investigation into Madeleine’s disappearance merely be archived. It showed every indication of being a politically watered-down report, bearing little relation to the robust, well-evidenced and well-argued interim report of Tavares de Almeida, dated 10 September 2007.”

Firstly, it was not the Attorney General, it was the District/Local Prosecutor. And it’s not a report but a dispatch.

Everyone knows our opinion about this but here and now we must play the devil’s advocate.

The prosecutor considers that as it stands, there is not enough evidence to bring the case to a court of law and we must agree with him as we’ll explain.

There are leads in the report that were left as uncertainties and which, in our opinion, could have easily have become certainties. Namely the forensics. But fact is they were left as uncertainties when they arrived at the hands of the prosecutor for a decision.

The whole Maddie process is too peculiar and too specific that it has to be studied on its own. It doesn’t reflect either of the judicial systems involved as they have been victims of outside interference at political level. It’s not corruption or incompetence but something much more serious than that.

What happened cannot be extrapolated to the rest of the Portuguese judicial system as Mr Bennett does.

The report as it stood, or how it was made to stand did not present enough evidence to charge, that’s a fact.

Portuguese courts do not allow cases to be brought based on circumstantial evidence alone. And rightly so. “In dubio pro reo”.

What precisely did Mr Bennett expect the prosecutor to do when there is not even any knowledge of what crime it really was?

Was it manslaughter or was it homicide? Was it with or without intention? Was it planned or not? Was it only the couple, were theT9 collectively responsible or was a third party responsible? Was there an abduction or did the child wander off and have an accident?

What was the cause of death? Even though there is no need of a body to make a charge, where is it? What happened to it?

Tavares de Almeida says that all evidence points towards the parents but doesn’t take that decisive step which would be to ask for them to be charged.

And the investigation continues after the Tavares de Almeida report meaning there were things that still needed further clarification.

If these things weren’t clarified by July 2008 as they weren’t, then the correct interpretation for the dispatcher to make is that what was uncertain in September 2007 remained so in July 2008.

If there wasn’t enough evidence to charge in September 2007 then the same amount of evidence continued not to be enough to do so in July 2008.

The prosecutor is not being corrupt or incompetent when he deemed it necessary that evidence for this kind of crime needs forensic corroboration, a decisive witness, a confession and a reasonable explanation as to what happened to the body. At the moment we have none, sadly.

The decision is not dodgy. What was dodgy was the way the process was prepared for such a decision and that was the doing of both the Portuguese and British judicial systems.

To say that it was just the Portuguese one is wrong. But again must stress that the Maddie investigation doesn’t serve as an example for anything.

However, one thing must be said clearly, the prosecutor failed when not charging them with abandonment and exposure, something we don’t believe happened but it’s a fact that they claimed publicly to have done on more than one occasion and hasn’t been contradicted, legally, by anyone.

On this aspect we must subscribe that the decision (or non-decision) on the part of the Portuguese judicial system was highly irregular to say the least.


“11. Allowing the lying murderess-of-her-own-child to bring a criminal prosecution against Amaral. Leonor Cipriano murdered her daughter in 2005, pretending that she had been abducted. She lied about this and was shown to be a serial liar on many other occasions. Yet the Portuguese judicial system allowed her to bring a state-funded criminal prosecution against Amaral and 4 other detectives, alleging she had been tortured.”

Even a murderess has a right to bring a judicial action against another.

The decision of the court was that there was no torture and Leonor Cipriano had more time added to her sentencing due to perjury in court. Justice was done.

No corruption, no incompetence and no unfairness.


“12. The prosecution failed to prove that any of the 5 detectives she had named had tortured her.”

The Court decided that there was no torture. Justice was done.

If the system was corrupt and had its cross-hairs set on Mr Amaral, wouldn’t this be easily “proved”?


“13. During the proceedings, the lawyer representing Leonor Cipriano, Marcos Aragao Correia - who was paid by the McCann Team - was barred from continuing to represent her any more because of his conduct in court and due to his having been found guilty of professional misconduct by the Lawyer’s Association in his native Madeira. The judicial system miraculously ordered the judge to reinstate him two days later.”

The lawyer represented Leonor Cipriano till the end. Marcos Aragão Correia was suspended by the order of lawyers but this did not reflect on his representation of Leonor Cipriano.

Mr Correia was suspended in January 2009 preventatively and provisionally by the Lawyer’s Order.

This had nothing to do with the judge, it was a decision applied by and lifted by the Lawyer’s Order.

This Order represents the profession of Portuguese lawyers but is not part of the Portuguese judicial system. His suspension was a professional problem, not a legal one.

While he was provisionally suspended the judge denied his presence in the trial as she should have. Once the Order lifted the provisional measure he continued to represent Ms Cipriano till the end.

The Portuguese judicial system had nothing to do with any eventual hastiness of the Madeira Section of  the Lawyer’s Order in deciding on this matter.

Publico in its article of Feb 15 2009 “Detective agency that looked for Maddie recruited lawyer to burn out Gonçalo Amaral in the Joana Cipriano case”, describes how Aragão Correia was involved in the trial Leonor Cipriano moved against the Portuguese detective:

“Leonor Cipriano was defended during all the inquiry phase by the lawyer João Grade dos Santos but, “on the eve of the trial starting, the client dismissed the services of the lawyer”, states SIC.

Years later, after the disappearance of little Madeleine McCann, on May 3 2007, the detective agency Método 3 enters the scene, which then tried to recruit Leonor Cipriano’s lawyer, João Grade do Santos, explaining to him that his help would be very useful due to the similarities of both cases.

At the time Método 3 showed itself to be highly available, inclusively indicating that “money for expenses was not a problem” and brought up the “Gonçalo Amaral” theme. Only months later, already after having refused to work for the Spanish agency did he realise that Método 3 had an “agenda.”

According to SIC this “agenda” was to get a lawyer that would put Gonçalo Amaral “out of combat”, as in both cases the detective seemed to want the same thing: the culpability of the parents.

Faced with the refusal from João Grade dos Santos, Método 3 approached another lawyer – the young Marcos Aragão Correia, who had participated in the search for Madeleine as a medium and later got involved in investigations related with the Joana case, ending up accepting to defend Leonor Cipriano in the trial against the five PJ inspectors from Faro. [note from blog: we find strange the use of the verb “to defend” as Leonor Cipriano was the Plaintiff, so the adequate verb, in our opinion, should have been “to represent”]

“The detectives [from Método 3] came to me and told me – we are very worried because there is a common element in both cases – Gonçalo Amaral – who is not interested in looking for the children, he is only interested in incriminating the parents. It happened in the Maddie case and also in the Joana case”, explained Aragão Correia, quoted by SIC.

The young lawyer accepted immediately the proposal from the Spanish agency to do what João Grade dos Santos had refused to do. “I was outraged – he reminds us – I thought that Mr Gonçalo Amaral had a hidden interest in systematically incriminating the mothers, without having proof against them. “

(…)

Paulo Pereira Cristóvão, former PJ inspector and one of the five arguidos from Faro, accuses Marcos Aragão Correia of trying to make “a deal” with the arguidos, writes SIC. “And that deal was: you all accuse Gonçalo Amaral and I will make Leonor Cipriano say that none of you gentlemen have anything to do with this”, he explained.

Marcos Aragão Correia, heard by the journalist Pedro Coelho, does not deny the existence the deal, but explains it was related to “outburst from one of the arguidos”. “That arguido sent a mail to a friend of mine win which he points the blame to Gonçalo Amaral”, denounces the lawyer.

Shielding himself behind a “secrecy agreement” which links him to Método 3, Marcos Aragão Correia did not give the news team any more details, but still said: “If I am taking sides for one of the parties, it is obvious that party is giving me moral support”.

Both Método 3 and the McCanns spokesperson were contacted by SIC and refused to issue any statement.”

To quote Marcos Aragão Ferreira outside court after trial “‘The target was hit, Gonçalo Amaral was convicted'... Marcos Aragão Correia, Leonor Cipriano's Lawyer.”

As can be seen, there is no relationship between the Portuguese judicial system being corrupt or incompetent and the McCanns using a lawyer without scruples to pursue their intent against Mr Amaral. 


“14. These proceedings lasted 7 months with 7 hearings from October 2008 to May 2009. In the U.K. the trial would have been heard over 7 continuous days. Spreading the hearings over several months significantly increases the lawyers’ costs.”

With a significant number of witnesses from outside the country, with hearings having to be translated, with lawyers excusing themselves for health reasons and for having been surprisingly dismissed, with the request for witnesses who weren’t part of the submitted list to be heard, with decisions to appeal the refusal of hearing new witnesses, with the introduction of requests to clarify the legitimacy of applicants we very much doubt that in the UK these proceedings would last 7 days. In the UK or in any other country.

Mr Bennett may counter that many of the procedures above would not have been allowed in the UK but all of them were in Portugal because the law states they can and that they should be respected.

Also, looking at current murder cases in the UK, many months elapse before one has a trial date or the trial date is set for months in the future, lawyers are engaged from the beginning.

Where is the difference?

We would like to note that in Portugal the lawyers are not paid by the time a trial lasts, it is the fees for their legal work they are paid for. They get paid by the hour they effectively work on a case.

For example, Mr Amaral’s lawyer after having submitted the appeal is not getting paid. If the decision is taken tomorrow or in 6 months, his fees between submission and decision will be exactly the same, which will be the hours he worked on the case in between these 2 times.


“15. At the end of the proceedings, and based solely on the testimony of a serial liar who murdered her own child in cold blood, the court convicted Amaral of the offence of ‘filing a false report’.”

Already answered. Mr Amaral was made accountable for what he did wrong. Justice was done.

Does that tarnish his reputation? He who has never made mistake please pick up the first stone…


“16. Those who are utterly opposed to Amaral have ‘milked’ this perverse judicial finding for all that it’s worth, labelling this as ‘perjury’and constantly referring to him as a ‘convicted perjurer’.”

Is the Portuguese Judicial system now to be considered corrupt and incompetent because of the manipulation of information done by third parties? Mr Amaral was not convicted of perjury.


“17. Amaral brought a perfectly proper case for ‘criminal libel’ against Marcos Aragao Correia, after he made a series of libelous statements about Amaral. The Portuguese judiciary would not allow him to proceed with this claim.”

Yes, this was a libel case, defamation and with the trial in a criminal court.

There is no such thing as ‘criminal libel’ in Portuguese law. As said, it's simply libel (or defamation). To distinguish between libel/defamation and civil law suit for damages please revert to reply to #2.

Under the Portuguese law libel is a criminal offence as contemplated in article 180 of the Penal Code, so always a crime

Such was the case that Mr Amaral brought against Leonor Cipriano's lawyer, a Criminal Law suit for defamation, under the referred article 180.

In Joana Morais' “Addendum to the Criminal Process for Defamation Against Marcos Aragão Correia” post:

“Brief introductory note: The hereunder addendum belongs to a process for criminal defamation [in Common Law, “libel” implies a defamatory comment, either written or spoken] and vilification against Marcos Aragão Correia filed by Dr. Gonçalo Amaral in April 2008. While this process is at the moment stalled in the Public Ministry, a counter-complaint filed against Dr. Gonçalo Amaral by the psychic lawyer, in October 2008, was urged forward.

The following document is published with the author's permission:

JUDICIAL COURT OF FARO

PUBLIC MINISTRY SERVICES

Process 87/08.8JAFAR

1ST SECTION

Mr Prosecutor,

Gonçalo Amaral, the offended party with the capacity to constitute himself as an assistant, and better identified in the files, comes forward to APPEND the following to the CRIMINAL COMPLAINT that was presented against arguido Marcos Aragão, under the rights of petition and of probatory intervention:"

In the libel case filed against Marcos Aragão Correia, Mr Amaral did go to court and lost. He lost his case on the 17 July 2012 in Faro Court.

The Portuguese judicial system did not deny him the right to proceed with his claim. He simply lost in court.

An unfavourable decision, not a corrupt or incompetent one. Or unfair.


“18. As a result of the way the Portuguese judicial system has treated him, Amaral has at times seemed close to being a ‘broken man’, he and his wife divorced, and he has had to rely on donations for Portuguese, British and other people even to be able to afford to carry on defending himself.”

Maybe more as a result of how the McCann machine has treated him. Also by using the Portuguese judicial system in a perfectly legal and legitimate manner.

It’s called legal games and the harsh reality is that he who has more money gets better legal help. Nothing to do with corruption or incompetence. Just the way it is.

We agree that he appears to be a broken man (although we really do think he still has a lot of fight in him and doesn’t seem to be wavering in his resolution).

Mr Amaral has unquestionably suffered enough, more than any man ever should. But not due to corruption, incompetence or unfairness of the Portuguese judicial system but rather because of an efficient mean legal machine he has working against him.

The evil is not in the system that Mr Bennett accuses without any basis to be corrupt and incompetent but the use evil people make of it using its known and public rules.

Mr Bennett himself has been a victim of the exact same thing in the UK.

We, like Mr Amaral, trust in the judicial system to deal with this in the appeal. We also trust that in the future evidence will surface that will allow charging those responsible for the demise of a helpless child.

Then that same judicial system Mr Bennett now criticises will be blind as it must be and apply a severe sentence to those responsible, in a criminal court.

It will be then up to UK courts to deal with them for financial fraud. In justice we trust. Dura lex, sed lex.


4. Corrections

We would like to make two corrections to what Mr Bennett has stated also regarding this issue.

Mr Bennett claims were that the former Prime Minister José Sócrates is in a high security prison and charged with crimes: “Does he not know for example that the country's former President, Jose Socrates, who met Gordon Brown, our Prime Minister, twice, and personally discussed the Madeleine McCann case with him, is now remanded in a top security Portuguese jail charged with all manner of corruption?”

José Socrates is not a former President (saying he is that is the same mistake as saying Brown is UK’s former King) but former Prime Minister and we find it perfectly natural and understandable for two Prime-Ministers of two European nations to meet and to discuss the hot topic at the time that involved both their nations.

But what we want to correct is that Sócrates has not been charged with anything nor is he in a high security prison. In fact he is in preventative prison and has NOT been charged to date.

He was given the opportunity to have his coercive measure changed to house arrest with electronic monitoring and he has refused. He preferred to stay under preventative prison in Évora.

The prison in Évora is not a high security prison but one for the police forces, military and people with special status, such as being a former Prime-Minister. That’s why he’s in Évora and not in Lisbon.

He will remain there until it is legally decided for him to be released.

We must add that the preventative prison is one of the most arguable coercive measures the Portuguese judicial system use. But however one may or may not agree with it, one has to accept it. It is the law.

Second correction we want to make is when Mr Bennett says that the British government has let down Mr Amaral, he’s being as correct (both in fact and politically) as anyone saying the Portuguese government is able to let down any British citizen in the UK under a judicial process in the UK.


5. Conclusion

This is not an attack on Mr Bennett. We will not accept any comment attacking Mr Bennett personally.

We attack messages not messengers. We attack ideas not people. We carry too many wounds while our message remains untroubled to know very well the difference.

Our points regarding the legal aspects of points #1 to #18 are approached in simple terms and can be verified by anyone who researches the information available. We always stick to facts (when we don’t we clearly assume the speculation) and we think it is the best approach in this case.

Several points needed to be clarified and they were.

This has nothing to do with people. Facts are what they are and they cannot be changed nor are they subject to interpretation from us or anyone else.

We do not call other people bonkers. It's rudeness that destroys truth seeking.

We did not enjoy seeing former PJ inspector Barra da Costa being called bonkers with the implication he would have lied about his info coming from inside sources about swinging.

We did not enjoy seeing Richard Bilton being called bonkers on Panorama because he mentioned swinging on Panorama, although he hastily had to add it was just a theory

We did not enjoy seeing an Anonymous being called bonkers because he was posting about swinging before the files were released, as per our “The Best Answer ?” post.

We did not enjoy seeing PJ being called bonkers for using “swing” as search terms on Murat’s and Malinka's computers as we showed in our “Why Swing?” post.

Especially when we saw those who were calling all of the above bonkers have not used the same word to those defending a pre-planned murder involving two families who have no problem in lending their 3/4 yr old daughters to cover-up a death nor to those saying CEOP was involved in covering up that death as early as April 29.

About seeing these two families involved let us just say that one is being involved because of differences of signatures in documents we have proven have been tampered with in our “3 Penguins in the desert post” so no information in them can be considered realistically trustworthy and the second family is involved just because someone decided to do so without any sort of proof.


Acknowledgement: We would like to thank Isabel Oliveira in her important and significant contribution especially but not only with the stated in the legal points #1 to #18. Isabel shares our concern in correcting misunderstandings that seem to exist about Portuguese legal matters in general and with the book trial in particular.