The European Arrest Warrant means faster and simpler surrender procedures and no more political involvement. It also means that Member States can no longer refuse to surrender to another Member State their own citizens who have committed a serious crime, or who are suspected of having committed such a crime in another EU country, on the ground that they are nationals.
http://ec.europa.eu/justice_home/fsj/criminal/extradition/fsj_criminal_extradition_en.htm
Full details of the law at:
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See also very interesting article from the Times now it would seem we are moving to the stage where formal arrest and charges seem very likely:
Verdict could take two years if Kate and Gerry McCann go on trial
Proceedings in Portugal can be formal and lengthy, says a leading criminal lawyer there
Frances Gibb, Legal Editor of The Times
If the McCanns are put on trial over the death of their daughter Madeleine it could be at least two years before there is a verdict, a Portuguese litigator said.
Miguel Castro-Pereira said that every effort would be made to ensure that suspects’ rights were respected and all routes of appeal exhausted.
“The trial itself could take six or more months depending on the number of witnesses,” he said. “But from this moment, I think it could be at least two years before there is any kind of verdict.”
Mr Miguel Castro-Pereira, a partner with Abreu Advogados, a leading Portuguese firm in Lisbon, added: “The proceedings are quite formal can be quite lengthy, to ensure that defendants have all of their rights.
“That is the main concern, to avoid innocent people being accused and convicted.”
The lawyer said that as official suspects in the case, the couple now has a right to be informed of any charges brought against them and to remain silent under questioning.
The McCanns are required to inform the Portuguese police of where they intend to stay and to let them know if they move from there, he said.
Apparently the couple has notified police that any further legal papers should be served at the offices of their Portuguese attorney.
The police will now continue to build their case and further inquiries could take weeks if not months.
If one of the McCanns is charged, they are likely to be remanded on bail and could even remain in England if the Portuguese authorities are content that they will cooperate, attending when required and remain in contact.
If they do not cooperate, the Portuguese police could issue a warrant for their arrest and seek their extradition.
Under the fast-track European Arrest Warrant, the couple has to be returned to Portugal within 90 days - the average is 45 - if they are alleged to have committed one of 32 listed crimes, including murder and manslaughter.
There are very limited grounds for refusing a request. If they do contest the extradition, there is a hearing within 21 days but the only grounds of challenge would be that the request fails on some technical ground.
A judge is now involved in case, Judge Silvia Bidarra, because the public prosecutor needs approval for further investigations that may involve the seizure of objects - such as the car - or searches of specific sites.
Some ten files of evidence have already been handed over by police to the public prosecutor, or state attorney. Mr Castro-Pereira said: "When the attorney has all the evidence, he will decide if charges should be brought and whether to issue a formal accusation.
"He has to be sure there is sufficient evidence to show the strong possibility of a conviction. The McCanns can also at that stage challenge the issuing of the charge or accusation."
If the prosecution subsequently goes ahead, the defendants can then also request a public inquiry at which a judge will have power to re-examine all the evidence and meet defence requests for any further avenues to be explored or further investigations, he said.
“This stage, which is aimed at ensuring both the prosecution and defence are on the same level, could take months.”
A defendant protesting his or her innocence would be likely to go down this route, he added. “Many appeals can also happen during this process.”
If after this the case still proceeds to trial, a judge is appointed and the defendants have a right to choose to have a jury of eight people. Three judges would hear the case.
But Mr Castro-Pereira added that the jury did not have the central public role as in Britain or the United States and could be overuled by the judge if the judge felt that its verdict out of line with the law.
“My personal opinion is that in this case, the McCanns might not choose a jury because there are some issues relating to public perception that have to be balanced - such as the fact that they left their children alone . . . that may not be helpful.”
The trial itself could take several months, he said. One current trial in Portugal involving some celebrities and many witnesses had been going on for two years. But he predicted the earliest that a trial would deliver a verdict was two years from now.
Stephen Jakobi, the founder of Fair Trials Abroad and sponsor of an interstate organisation concerned with EU justice, was more critical of the Portuguese justice system.
“If you ask me what their chances are of not being convicted, I don’t believe they have a prayer.”
He pointed to the case of the Gary Mann, convicted of 2004 of football hooliganism “on evidence that in respect of another Portuguese defendant had been rejected”.
The trial was utterly unfair and not conducted properly, Mr Jakobi said.
But he added: “However here we have the eyes of the world on this case and the Portuguese will bend over backwards to make sure they are careful and don’t do something silly or incompetent that could turn into a diplomatic crisis.
“In my experience this justice system, including the police, is one of the worst in Europe and the police have a reputation for brutality," he added.
“Portgual is signed up to the European Convention on Human Rights but it’s the law in action I worry about.”
An Amnesty International report on the state of prisons in 2003 expressed concerns that the human rights of prisoners were not protected and that some suffered ill treatment.
He added that if the case got as far as a trial and a conviction, then huge diplomatic pressure could be brought to bear behind the scenes to try to secure the release of the McCanns.
“This is what happened with the ‘plane spotters' [who went on trial in Greece] and were eventually acquitted on appeal. Tony Blair did some tough talking to the Greek Prime Minister and they came home.”
GUESS WHAT ROSIEPOPS - THEY ARE DOING SOMETHING ABOUT IT!
CLAUDIA
13.11.07, 12:38am
Again, if this DNA is so compelling why are they not doing anything about it?
• Posted by: Rosiepops • Report Comment
Excellent! Loved the link- that will hit where it hurts. So you are clever Felicity not Viv! (sorry)
Hiya are u coming out in sympathy with another name Lady Fairwaters/Josie LOL
I think the signs are all there - discussions with our Foreign Office /Ambassador etc as soon as the PJs got back from UK are not signs of political interference to me they are discussions about prosecuting Kate and Gerry - and the application to a British Judge ...Clarence seems to have gone quiet -oh well some you win with lies and spin and some you lose eh Clarence but you will forever be marked as a very dishonest man who no one can believe in a very dishonest job that should not exist in a decent law abiding society.
Hello again Lady Fairwaters - glad you foud the link helpful. To Kate and Gerry why fight for up to 90 days you know you are going anyway - best to go and face the music - oh dear probably no DVD's CDs Wndows Media Centre where you are going - how tragic!
On the DE forum the day I mysteriously had my account blocked I said to Docmac: Too much for the Daily Express to stomach - me and my big legal gob LOL
I am fascinated by the potentially very complex jurisdictional issues that may develop. It seems to me that since return to the UK a lot more offending has continue here - where is the forum going to be to bring these two to justice? The sort of level of fraud I am referring to and perpetuation of plots to continue to pervert the course of justice - surely cannot just be allowed to alie on the file as they say - but then again thinking it through I suppose it could - for manslaughter, disposing of the body, perverting the course of justice - that is going to get them a whacking big sentence - so perhaps the further offences only committed in our jurisdiction our DPP may announce it would not be in the interests of justice to also prosecute them for this - but what of the remaining funds - freezing order? Sorry just trying to get me legal head around it! Sort of thinking it through. I just do not believe for one minute they are going to walk away from this lot - and then there is always the fallback position neglect - causing serious harm.
It is going to be a fascinating case straddling the two jurisdictions and very complex facts and inexplicable examples of human behaviour IMO What do you think
• Posted by: Felicity
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