Grâce à la liberté dans les communications, des groupes d’hommes de même nature pourront se réunir et fonder des communautés. Les nations seront dépassées.
Friedrich Nietzsche (Fragments posthumes XIII-883)

08 - Pages manquantes des PJFiles

 Lettre de deux avocats portugais au juge d'instruction et au procureur de Portimão

Lettre des avocats portugais demandant, au nom de leurs clients, les forces de police britanniques,  que certains documents provenant du LC ou concernant des Britanniques soient retirés du DVD des PJFiles destiné à être remis à qui en ferait et motiverait la demande. 
Quand ils apprirent le projet de DVD (le 16 juillet), les Britanniques furent horrifiés et envoyèrent, en portugais (une fois n'est pas coutume...) une longue lettre tour à tour suppliante, moralisatrice et menaçante, datée du 17 juillet et adressée au procureur adjoint Melchior Gomes. L'échéance étant très brève, ils engagèrent deux avocats portugais qui produisirent donc la lettre qui suit. 
Par ailleurs les cabinets du procureur et du juge d'instruction, alertés, avaient commencé à suggérer des retraits et une méthode à appliquer pour ce faire. La publication de la décision de classement en fut même différée. Bien que les Britanniques n'aient pas explicitement demandé d'exclure du DVD les auditions rogatoires des TP7, les Portugais jugèrent qu'il était prudent de le faire. Mais une fuite se produisit... 
Chaque fois que, dans les PJFiles, l'on voit "page manquante", il faut lire "page censurée". Mais la grande majorité des pages, étant en portugais, n'étaient pas d'accès immédiat pour les Britanniques voulant exercer un contrôle. Il semble qu'ils se soient contentés d'apercevoir régulièrement, au milieu de tant de pages, la mention "missing page". Car évidemment certaines pages échappèrent par mégarde à l'élimination...


From Lawyers Morais Leitao, Galvao Teles, Soares da Silva
to
Criminal Instruction Court of Portimão
Portimao Public Services Ministry

Ref: 201/07.0 GALGS
Traduit par Ines
 
To the Criminal Instruction Judge and the Public Prosecutor

The Association of Chief Police Officers, The Chief Constable of Leicestershire, The Serious Organised Crime Agency, police and legal authorities in the United Kingdom and Crimestoppers, all already identified in the files, are here represented by Lawyers Rui Patricio and Tiago Felix da Costa, from the company Morais Leitao, Galvao Teles, Soares da Silva and Associates and submit the following explanation and request:

I.  
During the investigations that took place after the disappearance of the child Madeleine McCann, identified in the process, the requesting entities provided assistance to the Portuguese authorities in charge of these investigations, namely the Policia Judiciaria and the Public Ministry.

Within the sphere of this collaboration, different information was provided by the requesting entities to the Portuguese authorities, such as, for example: the identification of potential suspects, identified by the requesting entities as sexual offenders or potential sexual offenders, techniques and police methods used by the requesting entities within the scope of their attributions, Intelligence, forensic reports and information, analytical searches, amongst others.

The requesting entities recognise that part of the material provided by them was in the sequence of the Letters of Request. The requesting entities have always understood that this material would be part of the current process files. However, a large part of the information was provided in an informal manner, expedited spontaneously, so as to guarantee the speed and efficiency of the investigations, namely those covered by International and Community Rights applicable to legal and police cooperation.

However, the requesting entities have learned that a decision was taken with relation to the state of the investigations, notice of its archiving having been given, in accordance with the public announcement of 21st July 2008.

In addition, the requesting entities have noticed that numerous elements from the process have been published during the last weeks in the Portuguese press. Indeed, since the 22nd July 2008 the final report of the PJ has already been circulating on the Internet.
Furthermore certain newspapers don't conceal their intentions, as can be read, for example, in the editorial note on page 5 of the edition of the 22nd July 2008 of Correio da Manha: "The essence lies with the child who remains missing and for this reason the newspaper is not going to stop searching or questioning all the versions of all the protagonists, whatever inconveniences this may cause. The public interest lies here and not in the judicial secrecy. (our highlighting)

As a result, a large part of the information mentioned previously, could become known by the subjects to the process and by the public in general, namely in the terms of article 86, no. 2 and 3, that are contrary to no. 6 and 90 of the CPP.

What is in question, for example, are the data referring to identified sexual offenders or alleged sex offenders and even police information and Intelligence information, with the identification of individuals, telephone and trackback registers, entrances and exits from the UK and Portugal, amongst other aspects.

The current inquiry is an international criminal inquiry of major relevance. In this sense, at the beginning of the inquiry, there was a gentleman agreement during a meeting between the Portuguese and UK police and legal authorities, including the requesting entities. Under the shelter of this basic agreement, material was provided during the course of the inquiry, on an almost daily basis.
L'enquête criminelle sur la disparition de MMC est portugaise. Du reste les Britanniques n'oublient jamais de le rappeler, parfois du reste il y ont tout intérêt. La décision d'envoyer des officiers de liaison, des inspecteurs, des attachés de presse, etc. fut britannique. La décision de ne pas fournir d'informations médicales et financières sur les MC fut aussi une décision britannique. Cela ne rend pas l'enquête internationale pour autant.

Once the means of electronic communications between the UK and Portugal were established, detailed informative reports providing material were created, which were updated by the requesting entities, in an approximate manner. Given the enormous volume of material in question and the scarce time available, it is impossible to provide, within the current data, a discriminated register of each document and piece of data that was provided. However, it is possible to confirm that a considerable number of documents relating to the categories that will be mentioned further on was provided.
On comprend que sélectionner les documents à censurer était un travail de Romain pour les Britanniques, mais il n'en est pas moins un pour les Portugais. Ne vaudrait-il pas mieux de, honnêtement, suggérer de surseoir à la divulgation du DVD, le temps du nettoyage ?

A. Material relating to condemned and suspected sex offenders

This category of material is of an extremely sensitive and delicate nature. During the meeting mentioned previously between representatives from the Portuguese authorities and UK police and legal authorities, it was recognised early on that this was a category of material that should be protected in all cases.

It was equally recognised that this material would be provided by the police and legal UK authorities on the basis of the full understanding that this was confidential material, given that it contains the identification of names, last known addresses and other details relating to sex offenders, whether they were individuals who had already been condemned or just suspects.

The divulgation of this material would obviously have an impact on rights of individual privacy and this would have negative effects on police work in general, given the fact that police Intelligence which is maintained exclusively of police purposes and for criminal investigation, would enter the public domain, when this material should never be accessible to the general public.
Les identités de ces prédateurs sexuels, qui vivent masqués en Algarve à l'insu de la population, n'ont été révélées à la PJ que parce que la disparition de MMC les avait soudain rendus suspects. Quid si un enfant non britannique disparaissait ? Quid si, faute d'information, un prédateur sexuel était coupable ?

In June 2008, the requesting entities were permitted to analyse two volumes with elements relating to sexual offenders or potential sexual offenders, provided by the requesting entities to the Portuguese authorities who claimed that these would be kept secret.
From this analysis, the requesting entities concluded that part of the elements provided by them to the Portuguese authorities relating to sex offenders were not contained in these two volumes, which would permit the identification by all who had access to the process of sex offenders who were already condemned or just suspects.

Therefore, the requesting entities consider that all the information about sex offenders that was provided to the Portuguese authorities should not be revealed, and urge the determination of the exact location of this material and its legal treatment in terms of what the law states as regards elements that should remain under secrecy, before the opening of the process files to the knowledge of subjects of the process or third parties.
The main preoccupation of the requesting parties is to respect the physical integrity of the condemned or alleged sex offenders, who would certainly suffer serious risks if their details appeared in the public domain under these circumstances.

B. Intelligence Reports

The eventual divulgation of Intelligence reports elaborated by the UK legal and police authorities and shared with Portugal in confidence would be very serious for different reasons.
In the first place, much of this material is composed of non-proven information - in the sense that the information received by the UK authorities but which was not proven - in respect to what it says about individuals designated by name or identified by others. Its divulgation could result in an immediate and harmful impact on the individual rights of privacy and possibly to their physical integrity.

On the other hand, it is obviously of public, national and international interest that police forces share information/Intelligence in a rapid and effective manner. The risk of the Intelligence information coming into the public domain could put at risk the future international police cooperation between forces, this was also referred to in the meeting mentioned previously.

This information was provided by the UK police and legal authorities in good faith and in the full conviction with relation to its strict confidentiality, therefore its public divulgation should be avoided.
If the case of the divulgation of any of the Intelligence reports were to occur, it would be necessary to proceed to a qualitative analysis of the content of each of the reports referred to. This would be necessary in order to evaluate the risks run in the divulgation with relation to each specific situation.

C. Crimestoppers (Crime Combating Unit)

The Crime Combating Unit is a joint Investigation/Intelligence instrument of proved and recognised merit in combating crime, based in the UK. It works as a link between the police, the community and the media. It is a formally recognised system that provides people with a means of transmitting information to the police, without having to reveal their identity.

The very essence of the Crime Combating Unit is anonymity. The UK police and legal authorities provide a level of protection for anonymous status under contractual terms established between them and the respective source from the Crime Combating Unit. Questions are not asked to identify the source and any material that could identify the source is edited or carefully reviewed. To proceed differently would constitute a breakdown in understanding between the police/legal authorities and the source.

A high volume of information was provided by citizens by means of the Crime Combating Unit, which was transmitted to the Portuguese authorities. Under these circumstances, the requesting entities wish that, in relation to these documents, any reference to the Crime Combating Unit be eliminated and/or any information provided by any source, whoever it may be, or could be, susceptible to identification.

D. Communication between Police Forces

In this case and understandably, the level of cooperation between police forces has no precedent. Agreements and procedures were established between all parties, so that the investigation could proceed rapidly and on the widest level possible.
This occurred based upon the full understanding that the communications in reference would be kept confidential.

An eventual breakdown in this confidentiality would be extremely worrying, essentially due to two reasons:
Firstly, the material was provided under confidentiality and because of this there was no check, case by case, of the possible risks that could result from its exposure to the public domain. It should be noted that what is in question, amongst others, are the privacy rights of third parties. These rights could be rights that were not preventatively protected due to not all qualitative analysis having been carried out as regards any of the material in question;
Secondly, it is very probable that its divulgation could have negative effects on the exchange of material in the future, and could potentially prejudice important criminal investigations in the future.

E. Orientation of the NPIA

The NPIA - National Policing Improvement Agency - is a unit established in the UK in order to improve police techniques and methodology, namely by means of the presentation of orientation lines for use by police officers with relation to numerous aspects of police procedure.

These orientations are always presented in the Police to Police regime and with the following epigraph: "To be defined as delicate material and for this reason, not to be divulged, with its basis being the fact of treating material, directly or indirectly, that would reveal techniques and methods used by a police officer within the scope of a criminal investigation. Material whose divulgation could lead to the perpetration of other crimes, or prejudice the prevention of crime detection".

A set of documents of this kind was provided to the Portuguese authorities with the aim of helping the work in the investigations underway. Bearing in mind the epigraph referred to and the Portuguese authorities' acceptance of the material, the requesting entities make clear their deep preoccupation in the face of the possibility that the material in reference could be divulged without having had the opportunity to analyse its contents in detail nor the risks that could be associated.

Apart from the fundamental rights of the subjects identified in the information provided, which could be seriously affected by their imminent divulgation, especially with regard to the alleged sex offenders, police materials, techniques, methods and protocols and Intelligence would be revealed, which are classified and confidential under UK Rights.
 
With regard to the above, the following caution and request are made:
II.
To be added to the contents of I, expressed above, it should be taken into account that there are a set of legal measures in the UK destined to protect individual rights, for example, The Human Rights Act 1989 (entered into force in the UK following the European Convention on Human Rights), The Data Protection Act 1984, Regulation of Investigative Powers Act 2000 and legislation concerning common rights in the UK which recognises that in a large diversity of cases, there are obligations on the part of the state authorities to intervene in a coherent form with respect to the protection of individual rights.
Les Britanniques appellent ça "patronizing" !
 
It should be noted that the divulgation of the above-mentioned elements would most probably affect legal and international police cooperation in the future within the domain of complex criminal investigations, therefore putting into question the execution of Portuguese Justice.
It is important to consider that the divulgation of information provided by the requesting entities to the Portuguese authorities would violate the disposition of articles 2 and 8 of the European Convention on Human Rights and the dispositions of articles 1,2 7 8 9, B) 25, 26, 27, no. 1, 32, no. 2 and 8 of the Portuguese Constitution at least with respect to the information of a private and intimate nature of the subjects identified.

On the other hand, the divulgation of this information would violate article 7 of the European Union Convention on Mutual Legal Assistance in Penal Material of 29th May 2000 and which entered into force in Portugal on 23rd August 2005 and which is fully applicable in this case as the requesting entities always requested confidentiality for all information that was not provided within the framework of a formal request from the Portuguese authorities.
Les mêmes autorités qui ici font allusion à la mention explicite ou implicite d'une clause de confidentialité se sont toutefois singulièrement bien gardé de transmettre aux Portugais le double témoignage d'un couple de médecins amis des MC révélant le comportement au moins de mauvais goût d'un des TP9, avec l'accord passif de Gerald MC. Mais les rapports des autorités policières d'un pays avec celles d'un autre pays sont une chose, les rapports d'un flic d'un pays avec un flic d'un autre pays ont heureusement des chances d'être autre chose. Ainsi atterrit le double témoignage, malencontreusement ou non, dans les PJFiles...

If this was not the case, or in other words, if the transmission of information by the requesting entities had not pre-supposed respective confidentiality, this information would never have been transmitted to the Portuguese authorities, as according to what was stated previously this information would be subject to confidentiality covered by UK Rights and Law.
Et alors ? La confidentialité est-elle la priorité, et pas seulement le must, des Britanniques ?
Les Portugais ont eu comme priorité de retrouver une petite fille.

The Portuguese Law itself protects confidentiality of information transmitted within the scope of international legal cooperation, as laid down unequivocally in article 149 no. 1 of Law 144/99 of 31st January, which could in this way also be in violation.
It would be appropriate to check whether, the informants were told of the application of articles 16 and 19 of Law 93/99 of 14th July and whether they were contemplated or pre-supposed.

It will correspond to the Criminal Instruction Judge to determine the upholding of the secret of justice about all the elements identified above, in terms of article 76 no. 7 of the Penal process Code and other constitutional norms and principles and of the International Law that could be applicable if these have not yet been determined.
Only in this way will the necessary concordance between fundamental rights and constitutional principles and International Law be guaranteed in the case of conflict in this concrete case, also complying with the principle of proportionality consecrated in article 18, no. 2 of the Fundamental Law.

It should also be said that the divulgation of information from the process files that refers to personal data of individuals and who were in no way indicated in the current inquiry would also be an attack on the most elemental rights of personality and even on physical integrity.
On the other hand, the exceptional regulations foreseen in the protection of witnesses mentioned previously, covered by Law 101/2001 0f 25th August and above all in the State Secret Law (Law 6/94 of 7th April) permit the consideration of other rights, interests and values that are constitutionally protected within the domain of the penal process.

And let's not even mention that all that could be considered to be 'means of proof' would obligatorily need to be kept outside of the judicial secrecy, in the sense that the rights of the arguidos, those of the offended parties and the assistentes and those of the public in general are necessarily superimposed upon the rights of third parties who are the object of the information provided, upon the right of security and the international rights referred to previously.
It shouldn't be suggested as well that article 86 no. 7 of the CPP does not permit the Criminal Instruction Judge to ponder all the rights and interest in question, in a logic of practical concordance, being instead limited to maintaining the judicial secrecy only for the 'elements' that were not considered to be 'means of proof'.

Such an understanding would result in material unconstitutionality of the norm that id extracted from articles 86, no. 1, 2 and 3 and no. 7, 8 , 9 b) 89, no. 6 and 90, no. 1 of the CPP, when interpreted in the sense that the Instruction Judge is not appropriate to maintain the judicial secrecy about means of proof that doe not sustain a decision for accusation or for archiving, amongst others, to ponder the fundamental rights of third parties that are identified in these elements and (or the information transmitted confidentially by the legal authorities or foreign police forces and also when interpreted in the sense that the fundamental rights of personality and national and international security cannot, in the concrete case, be superimposed upon the right to defence of the arguidos in the penal process, as this would be a violation of that laid down in articles 2 and 8 of the European Convention on Human Rights and 1, 2, 7, 8, 9, 25, 26, no. 1, 27, no. 1 32, no. 2 and 8, 18, no. 2 and 8 of the Portuguese Constitution and article 7 of the EU Convention related to Mutual Legal Assistance in Penal Material of the 29th May 2000, ratified by the Decree of the President of the Republic no. 53/2001 of 16 October 2001 which entered into force in Portugal on 23rd August 2005.

In spite of all that it mentioned previously the requesting entities claim to make it absolutely clear that they do not claim in any way to interfere or prejudice the proceedings of the current process.
In truth, this requirement constitutes the possible processional way, destined to protect the fundamental rights of all the individuals who could be affected by the aim of the judicial secrecy about the elements in question, especially the internal security in Portugal and the UK and international and European security in general, the integrity of policing and investigation methods throughout the world, safeguarding in this way, the future of this kind of cooperation.

It is also certain that the requesting parties remain available to collaborate or assist the Portuguese authorities in the identification of all the documents that were provided by the requesting entities and in the evaluation of associated risks.
In these terms, we request from Your Excellency - in adhesion or in complement of any other identical requirement already presented, or for the case or with relation to the elements already mentioned - the following instruction:

A. The maintaining of the judicial secrecy about all the elements in the process that were provided by the requesting entities to the Portuguese authorities outside of the scope of the formal requests made, in these terms and with legal consequences;

Or in the case that this is not considered,

B. The maintaining of the judicial secrecy concerning all the elements of the files from categories A and C identified above that were provided by the requesting entities to the Portuguese authorities outside of the scope of the formal requests, in these terms and with legal consequences;

And, in either case,

C. The delivery to the requesting parties of a CD with the information relating to the process and all its annexes, so that the requesting entities can carry out a qualitative analysis of all the elements provided by them and which figure in the process;

And,

D. Whilst there is no final decision about the above, that there should be an immediate and provisional suspension of the access to the process, for the elements in the categories referred to above or those about which there are doubts as to which of the categories they belong to, either by the subjects and participants in the process, or third parties, in these terms and with legal consequences.
Hormis son caricatural paternalisme, cette lettre, rédigée certes par des avocats Portugais, mais à partir d'un texte des requérants, auquel furent ajoutés les références à la loi, illustre assez exemplairement les relations qui se tissèrent entre le Royaume-Uni et le Portugal en raison de la disparition d'une petite fille.
Le Pentateuque fut le premier livre imprimé au Porrugal, en 1487, par Samuel Gacon. Il fut volé par les troupes anglaises menées par le comte d'Essex, lors du saque de Faro.