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WITH THANKS TO JOANA MORAIS FOR TRANSLATION
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by
Margarida Davim
The
Appellate Court
lifted on October 19, the ban on the sale of the
book written by Goncalo Amaral,
The Truth of the Lie. However,
Isabel
Duarte, the McCann’s lawyer and trustee of the apprehended copies, has
failed to return the ten thousand copies to the book publishers.
There are about ten thousand copies of
Goncalo Amaral’s book, The Truth of the Lie, which are being
kept by
Kate and Gerry McCann’s
lawyer, even
though the
Appellate Court has annulled the decision to forbid its sale and
distribution.
«It is very peculiar for a lawyer who is a candidate to the Superior
Council of the Bar Association [Lawyer’s Order] to display
this kind of behaviour, failing to obey the decision of a Court»,
commented to SOL the former Judiciary Police, indignant at not having
yet received the books.
Amaral «does not wish to believe» in the hypothesis that the
books were destructed, even though that was precisely the «McCann
couple desire».
According to the
daily newspaper Correio da Manha, Isabel Duarte has delivered an
appeal to the Supreme Court of Justice, at the end of last week,
alleging that the Appellate Court decision «failed to take into account
facts which, throughout the process, were never put in question».
The lawyer believes that «the Appellate Court did not consider the book
was written to make money, to deepen the McCann couple’s pain and to
hinder the investigation».
Goncalo Amaral has a different opinion: «The non deliverance of the
books can constitute a crime of civil disobedience».
The former coordinator of the investigation to Madeleine McCann’s
disappearance states that the Appellate Court ruling has no recourse.
«The appeal decision would only be admitted has an extraordinary
recourse to the
Supreme Court of Justice, that is, a recourse of
jurisprudence uniformity* if a case law [jurisprudency]
existed opposing the decision made by the Appellate Court». Even in
that case, the recourse «would not have a suspending effect».
in
SOL 10.11.10 |
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* A non-legalese attempt by a non-legalese
citizen to explain a legal recourse
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By Joana Morais
10 November 2010
Jurisprudence Uniformity [Latin iuris prudentia] is a legal
recourse in Portuguese Law, 763º article & subsequent in Código de
Processo Penal (CPP) - Portuguese Civil Code, used to appeal a Court
ruling. As the name implies, there needs to be a case making law, or
several, opposing a court ruling which will be used as the 'grounds' -
hence the term jurisprudency - for an appeal against said court ruling.
What does this legal recourse mean in this specific case? - basically
that the McCanns' lawyer, Isabel Duarte, would have to find similar
cases where books have been banned for similar reasons in Portugal and
use those cases, as legal evidence and a basis on which to make the
appeal to the Supreme Court - which as far as I know it is something
that might be hard to find in the Portuguese law, unless one goes to the
years previous to 1974, to those 48 years of Portuguese Dictatorship
when books were banned and people were threatened into silence, by
force.
However, as Dr. Amaral explains in the above article, even then, even if
the Supreme Court accepts an appeal made using this extraordinary legal
recourse, the facts that remain are:
a) the Lisbon Appellate Court Judges has ordered on October 19, that Dr.
Isabel Duarte, the trustee of the previously banned books, must
restitute back those copies to the legitimate owner, i.e. Guerra & Paz
book publishers;
b) an appeal using the jurisprudency uniformity [Article 768º] has a
merely non-staying effect;
c) even if the McCanns' lawyer uses another legalese tactic [Articles
771º to 782º of the CPC] to appeal for an exceptional review of the
Appellate Court of Lisbon ruling, which seems to be the case according
to to her own statement above; and the appeal to the Supreme is
accepted, the law states very clearly [Article 774º] that an application
for a review has no suspensive effect.
Therefore, and in a very non-legalese manner: the books should have been
returned upon the moment the McCanns' lawyer was notified of the
Appellate Court decision which overturned the book ban, and subsequently
its sales. And 'ungagged' a Portuguese citizen. |
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Albym's
analysis of the court appeal dates |
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