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Albym's analysis of the court appeal dates



11 November 2010

I have three reasons for believing the date of the ruling was 14 October:

- the date written on page 36 looks like '14' (but it could be a badly written '19');

- the date 14/10/2010 was written in the astro translation (so she/they also read page 36 as a '14');

- the typewritten date on another document pertaining to the ruling (which you probably have not seen) is 18 October, which would mean that that document was prepared in advance of the 19th.


One possible thing that goes against this is that on that 'other' document there is a stamp that reads 'Proc. No: _______' (nothing is written on that line) and 'Entrada: 19-10-2010'. I'll come back to this.


Also, there was the question of whether the legal periods stipulated in the Civil Procedures Code (CPC) are in calendar days or working days, and I have now found Article 144 in the CPC which helps and hinders my understanding.


The first paragraph of that article states that all legal periods are 'continuous' - which I would take to mean 'calendar days', not 'working days' - but to confuse matters, in a way that only the Portuguese seem to be able to do, it also says:

- 'notwithstanding its suspension during judicial holidays' (we know about the annual holiday period between August and September each year, but I can find no specific statement that Saturday and/or Sunday are classed as a judicial holiday)

- and, it goes on, 'save where the duration is equal to or greater than six months' (meaning that no judicial period can ever exceed six months)

- 'OR in the treatment [conduct] of practical actions in processes that the law considers urgent.' (I'll come back to this)


The second and third paragraphs suggest, but only suggest, that weekends are judicial holidays, in that

- 'where a legal period ends on a date on which the courts are closed, then the end-date will move to the immediately following next working day', and

- 'for purposes of the preceding paragraph the courts are considered to be closed when a 'bridge day' has been granted.'


In Portugal, as a sop to the working class civil servants and unions (I am not being 'classist' in that observation - bear in mind that PT has been under communist/socialist rule for 36 years, twice as long as the Blair/Brown regime in UK), there is a special concept called a 'bridge day' which is a special holiday granted when a formal public holiday falls on a Thursday or a Tuesday. When that happens then the next day, Friday, or the previous day, Monday, is declared to be a 'bridge day' holiday, effectively resulting in a four-day weekend.


Why is all this important? Because in one calculation the submission of the appeal on 5 November falls outside the legal period, but in another calculation it falls within the legal period.


One other point is that Monday, 1 November, was a public holiday - All Saints' Day - which adds one day into the calculation.


1) If the legal periods are calculated in continuous or 'calendar' days excluding official holidays, then 5 November falls outside the legal period regardless of the ruling date being either 14th or 19th.

The longest duration would be (19th + 15 days + 1 public holiday) - 31 days in October = 4 November as the final date.


2) If the official date of the ruling is 14 October AND the legal period is measured in 'working days' then the longest duration would be (14th + 15 days + 1 (as above) + 6 (for three weekends) - 31 = 5 November: the day claimed by Isabel Duarte as being the date of submission of the appeal.


For this calculation to fail it would require that the date of 14th be included in the 15 days, so that the final date of the calculation ends on 4 November.


Additionally, for this calculation to end on 3 November would mean disregarding the All Saints' Day public holiday. 


3) If the official date is 19 October AND the legal period is measured in 'working days' then the appeal period would end on 10 November: five days AFTER the submission on 5 November.


For the period of '15 days' I need to cite four other Articles and possibly sow some additional confusion.


Article 153 states that 'failing special disposition, 10 days is the period [granted] for parties' (among other things) to 'exercise any other procedural power;'.


Article 382 states that 'cautelar' procedures are always deemed to be 'urgent'.


Article 685 states that 'the period in which to lodge an appeal is 30 days, save in urgent cases and the many cases expressly foreseen in the law, and counting from the notification of the decision.'


Article 691 states that (among other things) the period of appeal for urgent cases is reduced to 15 days.


First, here, I have taken the legal period for the appeal of the Appellate ruling as being 15 days based on the 'urgent' stipulations given in Articles 144, 382, 685 and 691 - given that the injunction is a 'cautelar' case.


Second, the phrase in Art 685, 'counting from the notification', brings me back to that stamp 'Entrada: 19-10-2020' which appears on the document dated 18 October which I mentioned at the beginning of this missive.


The word 'Entrada:' makes me think that that is the date on which the ruling was entered/recorded in the official judicial record.


That document is the official cover letter under which the decision was sent to the legal teams. It does not affect the outcome of any of the date calculations above, but it does introduce another date into the question: On which date is the Appellate ruling effective on the parties: 14th? 18th? or 19th?


Finally, in my searching of the CPC I did come across another very long but interesting Article, number 712, which sets out the circumstances under which a decision of the court of 1st instance about the 'matter of fact' can be altered by the Court of Appeal.


I did not see any reference to this Article in the Appellate ruling, but the last paragraph of Article 712 states that decisions of the Appeal Court made under the provisions of the Article cannot be appealed to the Supreme Court.


That leaves me wondering whether or not dates have anything at all to do with the rejection of the alleged 5 November appeal.

Added extra to report

I looked up 'férias judiciais' on the Internet and came across this small article for the 2010 holidays in Portugal:

In summary, it seems that in 2005 the first action of the José Sócrates absolute majority Government was to reduce the judicial holidays and that reduction was reversed this year giving the legal fraternity an extra 15 days holiday during the period 15 July to 31 August.

So, discounting all days in 2010 except those between those two dates, and ignoring the fact that courts are not open for non-urgent business on weekends or public holidays, the most obvious calculation is: 19 October plus 15 consecutive days equals an end date of 3 November, thereby rendering the McCann appeal on 5 November null and void, 'out-of-bounds', irrelevant, whatever similar word/phrase one might wish to choose.


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