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Page 01
Kate,
Gerald,
Madeleine,
Sean and
Amelie
McCann ― the
last three
minors
represented
by the first
claimants,
their
parents ―
filed,
against
Gonçalo
Amaral, the
publisher Guerra
& Paz,
Editores SA,
the
audiovisual
production
company Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA and
the TV
Channel TVI-Televisão
Independente,
legal
actions in
the ordinary
form,
subsequently
attached to
Lisbon 1st
Civil
Chamber,
demanding
the
condemnation
of the first
defendant to
pay the
claimants
the total
amount of
€1.200.000,
plus
interest at
the legal
rate since
the summons,
as
compensation
for moral
damages
arising from
the
publication
by the first
defendant,
in book and
DVD, of his
version of
the facts
related to
the
disappearance
of the minor
MMC, third
claimant,
and the
prohibition
for sale,
publication
or
disclosure
by all
defendants,
book and DVD
in question.
All
defendants
challenged,
rejecting
the
responsibility
imputed to
them and
concluding
that the
action was
inadmissible.
The sentence
uttered
following
the
judgement
held that
the action
was
admissible
in part,
sentencing
the first
defendant to
pay to each
of the first
two
claimants
the amount
of €250.000,
plus legal
interest,
and
prohibiting
the first
three
defendants
to proceed
with
existing
sales and
any new
editions of
the book and
DVD as well
as
transferring
the
associated
copyrights,
absolving
the
defendants
of other
queries of
the
claimants
and the
fourth
defendant of
all queries.
The first
instance's
judgement concluded that the book written by Gonçalo Amaral, the adaptation of
this book
for a
documentary
and the
interview of
the same
defendant
were
illicit,
according to
article 484°
of the
CC
1 and
that were
verified the
other
assumptions
legally
binding the
compensation
foreseen in
CC's
art. 483°,
wherefore
the requests
expressed in
the lawsuit
were
considered
partly
proceeding
in the terms
mentioned
above. |
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Page 02
In order to
conclude
with the
unlawfulness
of those
behaviours,
were
considered
the
respective
contents of
the book,
documentary
and
interview,
and the
conflict
between
freedom of
speech and
right to
good name
and
reputation
of the
plaintiffs.
Therefore,
in that
judgement,
was
developed
the
following
argumentation
that we
reproduce
partly
thereafter
because it
appears
interesting
on the point
of view of
the solution
that will be
given to the
issue
exposed in
the minutes:
Starting the
discussion
in a logical
and
chronological
order
through book
analysis,
one
immediately
establishes
that what is
at stake is
not a text
with
informative
content.
In fact, one
doesn't find
in the book,
reported in
a stripped
and simple
way, the
facts of the
investigation
that
intended to
clear the
circumstances
of the
disappearance
of the minor
Madeleine
McCann on
May 3, 2007.
No added
value is
brought to
the partial
copy of the
investigation
that the
Attorney
General's
Office did
distribute
for Social
Communication
after the
closure of
the
investigation
(n°s
65 and 66 of
the proven
facts).
The book is
the
expression
of an
opinion,
including
the account
of the
conclusions
that the
author draws
from the
means of
obtaining
evidence
produced in
the
investigation
in order to
formulate a
thesis, an
hypothesis
of
ascertainment
of the
facts.
The thesis
is
synthetically
that there
was no
kidnapping
of the
minor,
contrary to
the initial
premise of
the criminal
investigation
which is
what the
child's
parents
maintain up
to now. What
happened was
the
accidental
death of the
child in
flat of the
tourist
resort, then
the cover up
of this
event
through the
concealment
of her
corpse and
the
simulation
of the
referred
crime,
carried out
by the
claimants
Gerald and
Kate McCann.
Going
through the
book, one is
driven along
the days of
the
investigation
since the
breaking
news about
the crime.
The author
underlines,
at each step
of the
time-line,
the various
indices that
present a
match with
the referred
thesis -
among
others, the
lack of
bedroom
break-in
signs and of
strange
fingerprints
(pp. 44 and
48), the
presence of
the press
alerted by
the group of
friends of
the couple
(p. 48), the
fact that
the key
witness Jane
Tanner
affirmed the
sighting of
the “pseudo-abductor"
(sic) when
two other
protagonists,
in the same
place, saw
nothing (p.
51), the
inconsistencies
of the
statements
and
discrepancies
of those
elements of
proof
between
themselves… |
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Page 03 |
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Page 03
...(pp. 53,
57, 59,
144), the
statements
of the Smith
family (p.
115) and the
evidence
collected by
the K9 team
(pp. 157,
162, 167).
A first
conclusion
is that if
the book is
about an
hypothetical
checking of
the facts or
about the
opinion of
the author
on how the
evidence
collected in
the
investigation
should be
read, one
shouldn't
speak of
falsehood,
untrue
facts, and
it doesn't
make sense,
without a
better
understanding,
to discuss
the "exceptio
veritatis"
(truth
exception).
The means of
obtaining
evidence and
the evidence
referred to
in the book
are those of
the criminal
investigation
and most of
the facts
that the
book is
concerned
with (as
well as
those
referred to
in the
documentary
and
interview),
when related
to the
criminal
investigation,
are mostly
facts that
occurred or
are
documented
in the
investigation
(n° 80 of
the proven
facts).
In our view,
the issue,
in this
trial, is
the exercise
of the right
of opinion
by the
defendant in
that
context.
This kind of
view is,
moreover,
evident in
the final
conclusions
of the book
when the
author
himself says
: For me
and for
detective
inspectors
who worked
with me on
the case up
to October
2007, the
results we
have reached
are as
follows:
1. The minor
Madeleine
McCann died
in apartment
5a of the
Ocean Club,
in Vila da
Luz on the
night of May
3, 2007;
2. A
kidnapping
simulation
occurred;
3. Kate
Healy and
Gerald
McCann are
suspected of
involvement
in hiding
the corpse
of their
daughter;
4. Death may
have
resulted
from a
tragic
accident.
5.There is
evidence of
negligence
in the guard
and safety
of the
children (n°
24)."
The
interview
given by
Gonçalo
Amaral to
the
newspaper
CdM
2 and
published in
the edition
of July 24,
2008 is a
way to
advertise
the book and
therefore
the thesis
developed in
it. Here the
defendant
reaffirms
that thesis
in so many
answers as
questions
put to him :
1° the girl
died in the
apartment 2°
the
testimonies
of Jane
Tanner and
Kate McCann
are not
credible 3°
there are
clues of
crime
simulation
4° there was
concealment
of the body
(n° 48). |
| Note 02 |
The daily newspaper Correio da Manhã is from now on named “CdM”. |
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Page 04 |
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Page 04
The
documentary
develops the
referred
opinion in a
more
appealing
way, as it
is proper to
the
audiovisual
support,
giving it an
appearance
of police
reconstruction
of the
facts. It
steps from
the
expression
of an
opinion to
the attempt
to prove a
thesis. It
is the
defendant
Gonçalo
Amaral who
says it,
while the
narrator at
the
beginning of
the program:
"In the next
50 minutes
I will
prove
that the
child was
not abducted
and died in
the holiday
apartment in
Praia da
Luz" (N°
41).
In the
documentary,
this thesis
is clearly
stated as
the
contra-narrative
of the
abduction
hypothesis,
as the real
alternative
to it and to
the shelving
of the
investigation
for lack of
evidence.
This is why
the
challenge is
"discover
the truth
about what
happened
that day. A
death that
many people
want to
cover up",
ending the
defendant
with this
conclusion:
"I am sure
that this
fact
[Madeleine
McCann died
in the
apartment]
on day will
be revealed.
The
investigation
was brutally
interrupted
and there
was
political
and
precipitated
shelving.
Some hide
the truth,
but later or
earlier, the
varnish will
crack and
the
revelations
will emerge.
Only then
there will
be justice
for
Madeleine
McCann” (n°s
41 and 42).
In either
supports -
book,
interview,
documentary
- the
presented
thesis aims
to be
perceived as
the real
narrative of
events,
compared
with the
initially
sustained in
the
investigation
and by the
claimants
mediated
abduction
theory. The
same thesis
is still
held as the
truth that
is hidden
behind
shelving
determined
by political
reasons and
subservience
to the
British
authorities.
It is that,
it appears,
the meaning
that the
average
reader
attributes
to the title
"Maddie -
the Truth of
the Lie",
the "truth"
being the
thesis of
the book and
the "lie"
the
abduction
narrative.
Now the
thesis that
the minor
died
accidentally
in the
apartment
and that
this fact
was hidden
by her
parents, who
spread and
fed, in
order to
deceive, an
hypothesis
of
abduction,
is not new,
there's
nothing new
neither in
the book, in
the
interview or
in the
documentary.
This theory
of the facts
comes from
the own
investigation,
it is shaped
in the chief
inspector
Tavares de
Almeida's
report (n°
9), it was
an avenue
pursued by
the
investigation
(n°s 10
and 11), it
determined
the
constitution
of the
claimants
Gerald and
Kate McCann
as “arguidos"
and was put
within the
reach of the
media, and
soon of the
general
public
through a
copy of the
inquest
(n°s 65 and
66) . |
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Page 05
One wonders
then what is
the
difference
between 1)
asserting –
as it was
done at a
certain step
of the
investigation
or as many
commentators
do – that
there are
indices of
accidental
death,
concealment
of the
corpse and
simulation
of crime and
2)
supporting
this view as
did the
defendant
Gonçalo
Amaral in
those three
mediums.
There is one
aspect that
stands out
in this
comparison
and it is
the
particular
relationship
between the
defendant
Gonçalo
Amaral and
the
investigation.
The
defendant is
not referred
to the
investigation
as a mere
commentator
of a
criminal “fait-divers",
a writer of
police
intrigues or
a
criminologist.
Considering
the matter
in question
here and
what
obviously
contributes
to the
authority
and
credibility
of his
opinion, the
defendant
was the
coordinator
of the
criminal
investigation
into the
disappearance
of Madeleine
McCann from
the day of
the event up
to October
2, 2007. It
is this
particular
aspect
conjugated
with others
that are
appurtenances
- as is the
time
coincidence
between the
shelving of
the
investigation
on the one
hand, and
the launch
of the book,
the
interview
and the
selling of
the book on
the other –
that are
part of the
discussion
on how to
solve, in
this case,
the conflict
between the
right of the
defendant
and the
rights of
the
claimants.
At the
centre of
this trial,
there is a
conflict
between two
existing
rights, the
right to
good name
and
reputation
of the
claimants
(through the
presumption
of innocence
that they
always were
entitled to)
and the
right to
freedom of
expression
of the
defendant,
in the
concrete
field of the
right to
opinion he
is entitled
to.
The legal
protection
of such
rights of
the
claimants is
based on the
Universal
Declaration
of Human
Rights (UDHR) 3,
of
which the
article 12°
states that
no one will
suffer,
among
others,
attacks upon
one's honour
and
reputation,
stipulating
that against
such attacks
anyone is
entitled to
the
protection
of the law.
However, the
article
16° of this
great
Declaration
states, with
equal
protection,
that
"everyone
has the
right to
freedom of
opinion and
expression;
this right
includes
freedom to
hold
opinions
without
interference
and to seek,
receive and
impart
information
and ideas
through any
media and
regardless
of
frontiers."
The criteria
of
harmonization
of the
various
consecrated
rights
results of
the
following
art. 29°-2,
which states
that "in the
exercise of
his rights
and
freedoms,
everyone
shall be
subject only
to such
limitations
as are
determined
by law
solely for
the purpose
of securing
due
recognition
and respect
for the
rights and
freedoms of
others.. |
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| Note 03 |
The Universal Declaration of Human Rights (1948) |
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In English here. |
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En français ici. |
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Page 06 |
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Page 06
...and of
meeting the
just
requirements
of morality,
public order
and the
general
welfare in a
democratic
society.
Also from
the European
Convention
for the
Protection
of Human
Rights and
Fundamental
Freedoms
(4)
results the
protection
of both
rights.
Article
10°-1
states :
"Everyone
has the
right to
freedom of
expression.
This right
shall
include
freedom to
hold
opinions and
to receive
and impart
information
and ideas
without
interference
by public
authority
and
regardless
of
frontiers.
This article
shall not
prevent
States from
requiring
the
licensing of
broadcasting,
television
or cinema
enterprises."
In spite of
the freedom
of
expression
affirmed in
this norm
and of the
prohibition
of any
interference
in it by
public
authorities
of each
country, the
paragraph 2
of the same
article
states that
"the
exercise of
these
freedoms,
since it
carries with
it duties
and
responsibilities,
may be
subject to
such
formalities,
conditions,
restrictions
or penalties
as are
prescribed
by law and
are
necessary in
a democratic
society, in
the
interests of
national
security,
territorial
integrity or
public
safety, for
the
prevention
of disorder
or crime,
for the
protection
of health or
morals, for
the
protection
of the
reputation
or rights of
others, for
preventing
the
disclosure
of
information
received in confidence,
or for
maintaining
the
authority
and
impartiality
of the
judiciary."
The same
Convention
consecrates
in art.
6°-2 one of
the
fundamental
pillars of
societies
governed by
the
principles
of the
democratic
State of
Law,
establishing
that
"everyone
charged with
a criminal
offence
shall be
presumed
innocent
until proved
guilty
according to
law".
As it will
appear
below, the
activity of
the European
Court of
Human Rights
(5)
in
interpreting
and
precipitating
in the
concrete
case of
those
standards
reveals to
be
particularly
important
[retain up
yet the
principle of
the
reception of
the
international
law into
Portuguese
law, in
art. 8°-1 of
the
Constitution
of the
Portuguese
Republic (6)].
The
CRP protects
the rights
analyzed in
the chapter
on rights,
freedoms and
personal
guarantees,
which is the
part of
fundamental
rights.
Indeed, the
art.
26°-1 of
that legal
document,
under the
heading
“other
personal
rights”,
states that
to all are
recognized
rights ( ...
) to good
name and
reputation (
... )" |
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Note 04 |
The European Convention for the Protection of Human Rights and Fundamental Freedoms is currently shortened in the Convention or the European Convention on Human Rights. |
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Note 05 |
In order to avoid any possible confusion, in English, between European Court of Human Rights (ECHR) and European Convention on Human Rights (as well ECHR), the first will be alluded to as ECHR, while the second will be named by its shortened forms (see above) |
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Note 06 |
The Constitution of the Portuguese Republic will be mentioned as CRP. |
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Link to the CRP in English |
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Link to the CRP in French |
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Page 07 |
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Page 07
However, in
the same
fundamental
legal
document and
with equal
dignity, the
article 37°
establishes
the
protection
of the
freedom of
expression,
stating its
paragraph 1
that "all
have the
right to
freely
express and
divulge
their
thoughts by
words,
images or by
any other
means, as
well as the
right to
inform, to
seek
information
and be
informed
without
hindrance or
discrimination".
In spite of
the value of
this
fundamental
freedom, the
paragraph 3
of the same
article
refers to
offenses
committed in
the exercise
of this
freedom by
handing them
over to the
area of the
general
principles
of criminal
law and of
the unlawful
regarding
simple
social
order, while
paragraph 4
points
clearly to
the limits
which the
same freedom
may be
subject to,
recognizing
"to all
persons,
private or
collective (
... ) under
conditions
of equality
and
effectiveness
, the right
to reply and
rectify as well as the right to be compensated for damages suffered."
Glossing the
said
paragraph 3,
Vital
Moreira and
Gomes
Canotilho
write :
"From n°3
results,
however,
that there
are certain
limits to
the exercise
of the right
to freely
express and
divulge
one's
thoughts.
The freedom
of
expression
and
information
can not
actually
take
precedence
over the
fundamental
rights of
citizens to
good name
and
reputation,
to moral
integrity,
to
privacy” [CRP]
.
In the
Constitution
and also
interesting
for the
present
case, the
freedom of
the press is
also
protected,
being one of
its greatest
exponents
"the freedom
of
expression
and
creativity
for
journalists
and
collaborators” [art.
38°-2a)].
It should be
noted that
the
Constitution
itself
provides the
criteria to
resolve the
eventual
conflict
between
fundamental
rights by
establishing
in article
18-2 that
the legal
restrictions
on these
rights "must
(...) be
limited to
what is
necessary to
protect
other rights
or
constitutionally
protected
interests".
The
Constitution
also
welcomes the
presumption
of innocence
as one of
the
guarantees
of the
criminal
case (art.
32°-2).
Under the
aegis of
ordinary
law,
the article
70° of the
CC establishes
the general
protection
of the
personality,
stating that
the law
protects
individuals
against any
illegal
offense or
threat of
offence to
their
physical or
moral
integrity.
On the other
hand, still
in that
CC,
the article
483º generically
states that
"anyone who,
intentionally
or
recklessly,
unlawfully
violates the
rights of
others... |
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Page 08 |
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Page 08
... or any
legal
disposition
intending to
protect
interests of
others has
to
compensate
the injured
party for
damages
resulting
from
violation",
and
the article 484º
specifically
establishes
that "anyone
who claims
or spreads a
fact capable
of harming
the credit
or the good
name of any
person,
natural or
legal, is
liable for
the damages
suffered".
In this
regard Pires
de Lima and
Antunes
Varela teach
that
"whether, by
natural or
legal
persons, a
subjective
right to
credit and
good name
exists or
not, a
conduct
threatening
to cause
them harm,
in the
prescribed
terms, is
considered
as expressly
anti-juridical.
Never mind
that the
stated or
disclosed
fact
corresponds
to the truth
or not, as
long as it
likely can,
given the
circumstances
of the case,
reduce the
confidence
in the
ability and
willingness
of the
person to
fulfil their
obligations
(loss of
credit) or
shake the
prestige
that the
person
enjoys or
the good
image the
person has
(loss of
good name)
in the
social
environment
in which the
person lives
or carries
on their
business"
annotated
CC,,
Vol . I,
Coimbra
Editora, p.
486].
The
CC
also
contains a
norm on
conflict of
rights,
pointing,
article
335°-1,2, to
two
fundamental
rules in
this regard,
namely :
"1. Having a
collision of
rights,
equal or of
the same
kind, the
holders (of
those
rights)
should give
in to the
extent of
the
necessary
for all (the
rights)
producing
their effect
without
major
detriment
for any of
them .
2. If the
rights are
unequal or
of a
different
kind,
prevails the
one that
should be
considered
superior."
This being
the general
outline of
the law
applicable
to the
decision
arisen in
this trial,
it is
important to
know how the
Superior
Courts fall
and solve
the conflict
between the
contemplated
rights,
starting
with the
ECHR, of
which the
jurisprudence
is
particularly
industrious
and
interesting
in this
matter.
From this
same
jurisprudence
one retains
that in
contrast to
the
traditional
current of
the
Portuguese
higher
courts, this
court does
not accept,
in
principle,
the priority
of the right
to honour
and good
over the
freedom of
expression/freedom
of the press
[are
examples of
this
traditional
line, among
others, the
STJ's
Rulings (7) of
February 14
2002 and
March 7 2002
reported in
reviews n°
3379/01 and
184/02, of
the 1st and
7th
sections]. |
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Page 09 |
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Page 09
Very
differently,
according to
the
jurisprudence
of
the case-law
of the ECHR, freedom of speech and press prevails, admitting strict
restrictions,
especially
when is at
stake the
debate of
matters of
public
interest.
Thus, this
jurisprudence
follows an
enunciation of
ideas with
the
following
essential
core: (i)
freedom of
expression
is a
postulate of
a democratic
society and
of a State
of law,
being the
basis of
pluralism,
tolerance
and
open-mindedness
necessary to
progress in
this kind of
societies
and to the
individual
development
of its
members,
(ii) the
limitations
to freedom
of
expression
must be
anticipated
by law,
pursue a
legitimate
aim and be
necessary in
a democratic
society,
(iii) in
debates of
matters of
public
interest the
possibility
of
restrictions
on freedom
of
expression
is
particularly
limited,
(iv) the
politicians,
public
figures and
senior
officials of
public
administration,
when
exercising
their
functions,
are subject
to wider
limits of
critic than
individuals,
(v)
considering
the limits
of freedom
of
expression,
one should
distinguish
between
factual
assertions
and value
judgements,
between
statements
addressed to
the opinions
of the
opponents as
opposed to
judgements
ad hominem
and between
what is
critic and
what is
insult and
(vi) the
press has
the duty to
impart
information
and ideas on
matters of
public
interest and
in doing so
is allowed
to a certain
amount of
exaggeration,
even of
provocation [cf.,
among many
others,
Smolorz vs
Poland,
Thoma vs
Luxembourg
and Palomo
Sanchez and
Others vs
Spain ; an
exhaustive
enunciation
of the
fundamental
guidelines
of that
learned
Court of
Justice can
be read in a
Judgement of
the Appeal
Court of
Lisbon of
February 14
2012,
rapporteur
Hon. Judge
Rijo
Ferreira,
available at
www.dgsi.pt].
The most
recent
national
jurisprudence
is echoing
these
guidelines,
stressing
the
importance
of the
decisions of
the European
Court of
Human Rights
in
implementing
the boundary
between
freedom of
expression
and the
rights to
honour and
good name of
the
concerned
persons and
the
contribution
of those
decisions in
resolving
each particular
conflict
between the
two
rights. In
this sense,
the Ruling
of February
7 2008 says
"it seems to
us that the
position of
the ECHR
results in
an
imposition
on the way
of thinking.
There is no
justification
to think,
from the
outset, on
whether a
journalistic
piece
offends
someone. It
should
rather start
from the
freedom that
the
respective
authors
enjoy. Only
then one
should
seek... |
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Page 10 |
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Page 10
… whether
is justified
– in
respect of the
referential
criteria
mentioned
above, with
the
inclusion of
a margin of
proper
appreciation
by the
internal
organs of
each of the
Convention's
signatory
States - the
restrictive
interference
in the field
of that same
freedom and
the
consequent
move to
legal
sanctions.
This does
not mean,
however - in
our view -
that the
cases in
which such a
restrictive
interference
is justified
aren't
intensely
relevant. It
is enough to
read article
10°-2 to
weight what
it contains
in terms of
essential
values for
human beings
"[Review No.
4403/07 of
2nd Section.
In the same
sense, can
be read
the Ruling of
March 12
2009 in the
Review N°
2972/08].
It should
also refer
to the
content of
the right to
honour and
the
qualities or
attributes
that it
welcomes.
The STJ’s
Ruling of
May 27 2008
, quoted
above, says
: "The
honour of
the person
translates
therefore
into the
positive
value that
they infer
themselves
from the
core of
their being,
that is the
moral and
ethic
substrate of
their
existence,
while the
social
consideration,
the good
name and the
reputation
translate
into the
judgment by
others about
every one.
Correspondingly,
the right to
good name
and to
reputation
is
essentially
for the
person not
be offended
or injured
in their
honour,
dignity or
social
consideration
by
imputation
of others
and to fight
back against
this offence
and to
obtain
redress" [
idem ].
Capelo de
Sousa
teaches that
"honour
covers
immediately
the
projection
of the value
of human
dignity,
which is
innate,
offered by
nature
equally to
all human
beings,
unlikely to
be lost by
any man in
any
circumstance
( ... ). In
a broad
sense, it
also
includes the
good name
and
reputation,
as syntheses
of social
appreciation
for
determining
qualities of
uniqueness
of each
individual
at the
intellectual,
moral,
sexual,
family,
professional
or political
level" [The
Personality
General Law,
1995 , p.
303] .
Brito
Correia
added that
honour also
includes "
the
qualities
acquired
throughout
life, by the
individual's
effort or
otherwise
and in
various
aspects
(family,
political,
professional,
scientific,
literary,
artistic,
commercial,
etc.). It
covers inter
alia,
character,
honesty,
righteousness,
loyalty,
etc.,
corresponding
to a sense
of personal
self-esteem.
It is based
on
individual
awareness of
one's own
worth :
self-recognition
and
self-assessment".
According to
the same
author, … |
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Page 11 |
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Page 11
..."the law
protects,
however, not
only that
personal
feeling of
own worth,
which can
call up the
internal
honour, but
above the
projection
in the
social
consciousness
of all the
personal
values of
each
individual,
which can be
called
external
honour : the
qualities a
person needs
to be
respected in
a social
environment,
including
the good
name and the
reputation,
the social
consideration"
[ op. cit.
p. 587] .
The
protection
of the
rights of
the
claimants to
their good
name and
reputation
is, in this
case,
closely
related to
the
presumption
of
innocence.
The
claimants
Gerald and
Kate McCann
were made
arguidos
(formal
suspects) in
the criminal
investigation,
a status
that had the
function to
guarantee
their rights
(though not
being
interpreted
this way by
the general
public) and
ceased with
the closure
of the
investigation
having the
dispatch
(AG) report
concluded
:"It has not
been
possible to
obtain any
piece of
evidence
that would
allow for a
average man,
under the
light of the
criteria of
logics, of
normality
and of the
general
rules of
experience,
to formulate
any lucid,
sensate,
serious and
honest
conclusion
about the
circumstances
under which
the child
was removed
from the
apartment
(whether
dead or
alive,
whether
killed in a
neglectful
homicide or
an intended
homicide,
whether the
victim of a
targeted
abduction or
an
opportunistic
abduction),
nor even to
produce a
consistent
prognosis
about her
destiny and
inclusively
- the most
dramatic -
to establish
whether she
is still
alive or if
she is dead,
as seems
more likely.
(…)
Therefore,
after
everything
seen,
analysed and
duly
pondered,
facing all
that is left
exposed, we
settle (…)
the
archiving of
the process
concerning
the “arguidos"
Gerald
Patrick
McCann and
Kate Marie
Healy,
because
there are no
indications
of their
practice of
any crime"
(n° 15).
In the
case-law of
the ECHR,
the
principle of
presumption
of innocence
imposes a
standard of
conduct for
all agents,
public
servants and
magistrates
involved in
the
administration
of criminal
justice.
The
presumption
of innocence
prohibits,
according to
these
provisions,
the
premature
expression
of opinions
or beliefs
of guilt by
the courts
but also
assumptions
by public
officers
involved in
procedures
which might
lead the
public to
suspect the
responsibility
of the
suspects in
the facts
under
investigation.
Accordingly
in the
Karaman vs
Germany
case, the
decision
claims that
"the Court
has
previously
held in this
context
that article
6°-2 aims at
preventing
undermining
of a fair
criminal
trial by
prejudicial
statements
made in
close
connection
with
proceedings.
It not only
prohibits
the
premature
expression
by the
tribunal
itself of
the opinion
the person
«charged
with a
criminal
offence» is
guilty
before he
has been so
proved
according to
the law, but
also covers
statements... |
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Page 12 |
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Page 12
… made by
other public
officials
about
pending
criminal
investigations
which
encourage
the public
to believe
the suspect
guilty and
prejudge an
assessment
of the facts
by the
competent
judicial
authority
[HUDOC
8].
In the Allen
vs UK case,
the ECHR
emphasised
the
importance
of the
presumption
after the
acquittal or
dismissal of
the criminal
investigation,
explaining
that this
principle
prevents
suspects or
defendants
in such
cases are
treated as
if they were
in fact
responsible
for the
criminal
offences of
which they
were accused
and
stressing
that without
this second
level of
protection –
the level of
full respect
for
acquittal or
archiving –
the
presumption
of innocence
would remain
illusory or
merely
ideal.
Likewise,
the
presumption
of innocence
requires
that the
absence of
guilt that
emanates
from it is
respected,
after the
acquittal or
dismissal,
in all legal
proceedings
of any kind
and by any
authority
that comes
into contact
with these
facts [idem
Allen vs
United
Kingdom].
In this
case, the
claimants
Kate and
Gerald
McCann never
ceased to
benefit from
this
presumption
of innocence
and from the
behaviour
imperative
that it
places on
national
judicial and
justice
authorities
and on all
the civil
servants and
agents.
The
defendant
Goncalo
Amaral was
the
coordinator
of criminal
investigation
from the
date of the
crime
breaking
news and
October 2nd,
2007 (n°
12).
On July 1
2008, GA
retired from
the Judicial
Police,
having the
book "Maddie
- A Verdade
da Mentira"
been
released on
the 24th and
sold with
the same day
edition of
the
newspaper
'Correio da
Manhã', an
edition
where was
published
the
interview
which is
part of this
lawsuit (n°s
13, 25, 26
and 48).
"The Police
have the
responsibility
of defending
democratic
legality,
insuring
internal
security and
protecting
the
citizens'
rights” [article
272 of the
[CRP]
."The
Judicial
Police is an
upper organ
of the
criminal
police
assisting
the
administration
of justice,
hierarchically
organised,
dependent on
the Minister
of Justice
and
supervised
by law
[article 1
of the
Organic Law
of the
Judicial
Police,
approved by
Decree-Law
n° 275- A /
2000 of
November 9,
as amended
by
Decree-Law
No.
235/2005, of
December 30,
then in
force].
The criminal
investigation
chief-coordinators
are
authorities
of criminal
police under
the terms
and for the
purposes of
criminal
procedural
law [article
11°-g of the
same law]. |
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The HUDOC database provides access to the case-law of the Court, the European Commission of Human Rights' decisions and reports and the Committee of Ministers' resolutions. |
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Page 13 |
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Page 13
Under the
Disciplinary
Regulation
of the
Judicial
Police, the
duty of
confidentiality
is one of
the general
duties of
the members
of the
Judicial
Police [cf.
art. 5°- of
the
Regulation
approved by
Decree-Law
No. 196/94,
of July 21].
Alongside
this general
duty of
confidentiality,
the Organic
Law of the
Judicial
Police
requires
from the
civil
servants
working in
the Judicial
Police a
duty of
reserve,
prescribing
that (...)
"they cannot
make public
disclosures
related to
lawsuits or
matter of
reserved
nature other
than what is
provided for
in this law
on public
information
and
preventive
actions
among the
population,
and also in
the
provisions
of the
criminal
procedure
law"
[art.12°-2].
Even so the
statements,
when
admissible,
(…) "are
subjects to
prior
authorisation
provided by
the national
director or
the national
deputy
directors,
at risk of
disciplinary
proceedings,
maintaining
the eventual
criminal
liability"
[art.
12°-3].
The duty of
reserve is a
functional
requirement
common to
magistrates
and organs
of criminal
police. As
an example,
in the case
of the
magistrates
of the
Public
Ministry,
the ordinary
law
postulates
that this
duty will
remain after
retirement,
establishing
the article
148°-7 of
the Statute
that
"retired
judges must
respect the
reserve
required by
their
condition."
(9)
It is a duty
that is
essential to
the
preservation
of public
confidence
in the
institutions
of the
administration
of justice.
The duty of
reserve
protects the
purposes of
the criminal
action, but
also the
physical and
moral
integrity,
the freedom
and the
dignity of
those
concerned by
that action.
The criminal
investigation
officers,
retired for
a motive
unlike
disciplinary
sanction,
retain
special
rights,
being
holders of
an
identification
card for
recognition
of their
quality and
the rights
they enjoy
[article
149°-1,2 of
the Organic
Law of the
Judicial
Police and
Ordinance
No. 96/2002
of 31
January].
The statute
of the
retirement
[approved by
Decree-Law
498/72 of
December 9]
establishes,
from its
original
wording in
the
respective
article
74°-11, that
the retired,
apart from
his right to
a retirement
pension,
remains
bound to the
civil
service,
keeping the
titles and
the category
of the
position he
held and the
rights and
duties that
do not
depend on
being in
activity.
According to
the note of
the Attorney
General
Department's
advisory
Council on
February 16,
2006 (Esteves
Remedio, in
www.ministeriopublico.pt). |
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Page 14 |
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Page 14
The
retirement
legal
relationship
is, compared
to the
public
employment
legal
relationship, a
relationship
less intense
where there
is a
blurring of
the ties
between the
retired and
the
Administration,
expressed in
the
reduction of
rights and
duties.
There is
even so a
'bond to the
civil
service',
which
materialises
in
conserving
the titles
and the
position of
the function
exercised
and the
rights and
duties that
are not
dependent on
activity
status"
The same
notice
concluded
that "the
retired
remains
subject to
duties of
private
conduct
expressed in
particular
in the
abstention
of practice
of facts
integrators
of crimes
that have a
relevant
connection
with the
functions
previously
carried out
and thus
affect
actually the
functioning
of the
service or
in a serious
way the
dignity and
the prestige
of the
function or
of the
Administration"
(idem).
Bearing in
mind that
legal
mosaic, how
to solve the
conflict in
this case
between the
rights of
the
claimants
Gerald and
Kate McCann
to their
good name
and
reputation
and the
defendant
Gonçalo
Amaral's
right to his
opinion as
resorting to
freedom of
expression
he's
entitled to
?
It appears
that the
conflict
should be
solved with
the factual
data that
are present
from the
outset and
that reveal
the special
condition of
the
defendant in
front of the
criminal
investigation,
condition
that he
capitalises
in the book,
the
interview
and the
documentary.
In this
documentary,
the
defendant is
explicit
right in the
opening :
"My name
is Gonçalo Amaral
and I was
investigator
of the
Judicial
Police for
27 years. I
coordinated
the
investigation
of Madeleine
McCann's
disappearance
on May 3
2007. In the
next 50
minutes I
will prove
that the
child was
not
kidnapped"
(n° 41).
The book
conveys the
idea that
the truth of
the
investigation
is merely
formal,
while the
truth of the
author (that
would have
been met at
the end of
the line of
inquiry he
followed up
to his
removal from
the case) is
the material
truth -
"This book
still has a
greater
purpose. The
purpose to
contribute
to the
discovery of
material
truth and
the
realisation
of justice"
(n° 23) .
There is no
doubt that
it is the
proper
defendant
who calls
his
condition of
former
coordinator
of the
criminal
investigation
and that it
is through
this statute
that the
book, the
interview
and the
documentary
distinguish
themselves -
self-qualifying
– from the
opinion of
television
commentators,
writers or
other who
gloss about
the subject.
But, at
least in our
view, that
same status
cannot but
mark the
limits of
the
defendant's
freedom of
expression
when
compared to
the one
detained by
those
others. |
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Page 15 |
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Page 15
Having been
in charge of
that
investigation
as a member
of the
Judicial
Police, the
defendant
Gonçalo
Amaral,
although
retired on
July 1 2008,
did not
enjoy, on
the
following
July 24, in
respect of
the outcome
of the
criminal
investigation
released on
the 21st of
the same
month and
year, a
large and
full freedom
of
expression.
This freedom
was
conditioned
by the
functions he
had,
functions
that imposed
him special
duties that
traverse the
status of
retirement,
including
the duty of
reserve.
In this
concrete
situation,
despite the
personal
reasons that
the
defendant
invokes in
the
introductory
note of the
book, the
freedom of
expression
should cede
through the
imperative
of that
reserve.
It was not
what
happened and
the truth is
that, on
July 24
2008, scant
three days
after the
release of
the dispatch
shelving the
investigation
for lack of
proof, the
book was
launched,
sold with
the
newspaper’s
edition, and
the
interview
was
published.
The
time-line
displays
well the
intention to
call for the
contradictory,
in the
public
domain, the
shelving of
the
investigation,
comparing it
with the
thesis of
the previous
line of
investigation,
told as the
true one by
a person who
had been
responsible
for the same
investigation.
In this form
of resolving
the conflict
between the
rights is
revealed the
illegality
of the
conduct of
the
defendant
Gonçalo
Amaral in
respect of
the effects
of article
484° of the
CC.
In
disagreement
with this
judgement,
the
defendants
1°, 2° and
3°
(10)
lodged an
appeal
against it.
The Lisbon
Appeal Court
granted
those
requests and
revoked the
appealed
decision,
judging the
lawsuit
unfounded
concerning
the
appellants
and
acquitting
them of all
the
requests.
Their
allegations
were
expressed in
the
following
way :
In terms of
personality
rights,
article
26°-1 of the
CRP states
that the
rights to a
person’s
good name
and
reputation
are
recognised,
as well as
protection
of the
intimacy of
private and
family
life..
The same
fundamental
law protects
with equal
dignity
freedom of
expression,
stating in
article
37°-1 that
everyone has
the right to
freely
express and
disclose
their
thought... |
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Page 16 |
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Page 16
...through
speech, via
image or by
any other
means, as
well as the
right to
inform, to
look for
information
and to be
informed
without
hindrance or
discrimination.
Freedom of
the press is
established
under
article
38°-2,
concerning
freedom of
expression
and
creativity
for
journalists
and
collaborators.
Article
18°-2
establishes,
in the event
of a
conflict
between
fundamental
rights, that
legal
restrictions
on these
rights are
limited to
the need of
preserving
other
constitutionally
protected
rights or
interests.
For its
part, the
ordinary law
enshrines in
article 70°
of the
CC, as a
principle,
that the law
protects
individuals
against
unlawful
offence or
threat of
offence to
their
physical or
moral
integrity,
while
according to
article 80°
of the
CC
everyone
must
maintain
discretion
about
someone
else’s
intimacy of
private
life.
In case of
conflict of
equal rights
or of the
same
species, the
holders of
these rights
must, in
terms of
article
335°-1,
assign to
the extent
necessary
for all
rights to
take effect
without
major damage
for any of
them.
Article
335°-2
states that,
all rights
being uneven
or of
different
species,
prevails the
one that has
to be
considered
higher.
Thus, as the
dominant
jurisprudence
understands
:
"One of the
limitations
to freedom
of
information,
which
therefore is
not an
absolute
right, is
the
preservation
of the right
to a good
name.
Journalists,
media, are
bound by
ethical,
professional
duties,
rigour and
objectivity.
– It is
up to the
media's
right,
social
function, to
broadcast
news and
express
opinions,
critical or
not, the
importance
being that
they do so
with respect
for the
truth and
the
intangible
rights of
others, as
personality
rights.
– The
right to
honour, in a
broader
sense, and
the right to
freedom of
press and
opinion are
traditional
occasions of
conflict.
–
Criticism is
limited by
the rights
of the
targeted
person, but
does not
stop being
legitimate
when being
trenchant
and sharp
but not
offensive,
because that
is often the
style of
writers.
–
Criticising
implies
banning ;
censorship
conveyed by
the media
only stops
being
legitimate
as a
manifestation
of
individual
freedom when
it expresses
objective
anti-juridicity,
violating
the most
personal
rights and
affecting,
more or less
lastingly... |
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Page 17 |
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Page 17
...
according to
people's
memory,
values which
must be
preserved as
the rights
here at
stake to
honour, good
name and
social
reputation.
(ruling of
the
STJ
dated
20/01/2010,
www.dgsi.pt)
In the case
before us,
besides the
reporting of
the facts
that are
part of the
investigation
into the
disappearance
of the minor
Madeleine
McCann, the
analysis of
the book and
other
published
matter shows
that the now
first
appellant
sustains the
thesis that
there was no
kidnapping,
but
accidental
death of the
child,
followed by
a cover-up -
concealment
of the body
and
kidnapping
simulation –
by the
applicants
Gerald and
Kate McCann,
now the
respondent
party .
It results
from the
above-mentioned
publication
that
evidence
elements and
clues it
reports to
are
essentially
those
referred and
documented
in the
respective
criminal
investigation.
Not
withstanding,
the exposed
thesis,
according to
which the
minor died
accidentally
and the
parents hid
the fact,
spreading
the
kidnapping
hypothesis
in order to
deceive, is
not new,
since it is
also in the
report
referred to
at n° 9 of
the proven
facts,
having
determined
the
constitution
of the
respondent
party as
arguidos and
having been
made public
by the media
after the
digitalisation
of the
investigation
files was
provided (
n°s 65 and
66 of the
proven
facts).
As
determined
by the
appeal
ruling heard
in this
section
regarding
the appended
injunction,
the first
appellant
intended
through (his
book) to
outline his
vision of
the facts,
once the
institution
to which he
belonged
(the PJ) did
not allow
him, as a
professional
police
officer in a
criminal
investigation,
to respond
to attacks
against its
expertise
and honour.
We must
therefore
consider the
publication
of the book
as
reflecting
the
legitimate
exercise of
the right to
opinion.
And it
results from
what has
been proven
that,
besides the
facts at
stake were
abundantly
engraved in
the
investigation
and even
made public
at the
instigation
of the
Republic
Attorney
General, the
respondents
are the ones
who, taking
advantage of
an easy
access,
multiplied
interviews
and
interventions
in the
national and
international
media, so
that the
conclusion
is they
themselves
voluntarily
limited
their rights
to
discretion
and intimacy
of private
life.
By this kind
of
proceeding,
they opened
the way for
anyone to
equally
express
their view
on the case,
contradicting
their theory
– without
doing
anything but
practicing... |
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Page 18 |
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Page 18
… a
lawful and
constitutionally
sanctioned
right to
opinion and
freedom of
expression
of their
thoughts.
Moreover, we
do not see
how the
right of the
respondents
to enjoy,
after their
constitution
as “arguidos",
the
guarantees
of a
criminal
trial –
including
the right to
a fair
investigation
and the
right to
liberty and
security -
could be
affected by
the content
of a book
that
essentially
describes
and
interprets
facts that
are part of
an
investigation
the contents
of which
have been
made public.
Although
they were
not
considered
sufficient
to elicit
criminal
charges,
nothing
prevents
such facts
of being
subject to
various
assessments,
especially
in a
literary
kind of
work.
Therefore,
and as
rights are
enshrined
namely in
articles 37°
and 38° of
the
CRP, the
publication
in question
has to be
considered
legitimate.
The appealed
decision,
however,
reckons that
the first
(here)
appellant,
Gonçalo
Amaral,
because he
coordinated
the criminal
investigation
into the
disappearance
of Madeleine
McCann until
2/10/2007,
remained,
even after
his
retirement
on
1/07/2008,
subject to
the duties
of silence
and reserve,
regularly
imposed on
officers of
the Judicial
Police in
activity.
Under such
terms, and
despite the
personal
reasons
given in the
prologue of
the book,
the
appellant,
in case of
collision
with the
rights to
good name
and
reputation
of the
respondents,
would not
enjoy the
full and
complete
freedom of
expression
concerning
the
investigation's
conclusions,
his conduct
being deemed
unlawful
under
Article 484°
of the
CC.
From what
has been
said above
on this
subject, it
is clear
that the
expounded
arguments
are not
worth
considering.
Indeed,
irrespective
of the
reasons
given by the
appellant
for
publication,
it is hardly
understandable
that a civil
servant,
even more a
retired one,
should carry
on his
silence and
reserve
duties, thus
limiting the
exercise of
his right to
opinion as
to the
interpretation
of facts
already made
public by
the judicial
authority
and widely
discussed
(actually
largely at
the
instigation
of the
protagonists
themselves)
in national
and
international
media.
In the
absence of
the appealed
decision's
first
presupposition,
it must be
concluded,
against it,
to the lack
of
eligibility
of any of
the
respondent
party's
demands -
remaining
without
effect the
re-assessment
of the
material
facts,
secondarily
requested |
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Page 19 |
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Page 19
Both
claimants
(here
appellants)
lodged an
appeal for
reviewing
that
acórdão
(note : to
avoid
confusion,
this word
always
designates
the decision
of the
Appeal
Court).
Provided
allegations
and gathered
the legal
visas, it's
up to
deciding.
2 –
Fundamental
principles
1.2. In the
appealed
acórdão
the
following
facts are
considered
proven
:
1. The
applicants
Gerald
McCann and
Kate (sic)
are married
to each
other.
2. The
applicant
Madeleine
McCann was
born on
12.5.2003 ,
daughter
of Kate
McCann and
Gerald
McCann.
3. The
applicant
Sean McCann
was born on
1/2/2005,
son of Kate McCann and Gerald McCann.
4. The
applicant
Amelie
McCann was
born on
1/2/2005 ,
daughter
of Kate
McCann and
Gerald
McCann.
(11)
5. The
applicant
Madeleine
McCann has
been missing
since
3/5/2007 ,
resulting in
the criminal
investigation
n° 201/07.0
GALGS,
opened by
the
prosecutor
of Portimão.
6. The dogs
Eddie and
Keela, from
the British
police, have
detected
human blood
and cadaver
scent in the
apartment 5A
of the Ocean
Club.
7. The dogs
Eddie and
Keela, from
the British
police, have
detected
human blood
and cadaver
scent in the
vehicle
rented by
the
applicants Kate
McCann and
Gerald
McCann after
Madeleine's
disappearance.
8. The
applicants Kate
McCann and
Gerald
McCann were
constituted
(by lawyer)
assisted
witnesses (arguidos)
in the
criminal
investigation.
9. On
10/9/2007 (pp.
2587-2602 of
the criminal
investigation),
Chief-Inspector
Tavares de
Almeida
wrote a
report and
particularly
the
following :
"Given what
we could
establish,
the facts
point
towards the
death of
Madeleine
McCann
during the
evening of
May 3 2007,
in the
apartment 5A
of Praia da
Luz Ocean
Club resort,
occupied by
the McCann
couple and
their three
children (p.
2599) (... )
Taking into
account all
that was
presented in
the autos,
it results
that :
A) The minor
Madeleine
McCann died
in apartment
5A of the
Ocean Club
in Praia da
Luz in the
evening of
May 3, 2007
;
B) A
simulation
of abduction
took place ;
|
| |
| Note 11 |
These proven facts were established in the first instance lawsuit where the five members of the McCann family were claimants. In this instance's sentence the requests of the three McCann children were dismissed. Their parents could have lodged an appeal on their behalf, but they chose not to. Hence in the judgement by the Appeal Court Kate and Gerald McCann were the only respondents. |
|
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Page 20 |
|
Page 20
C) In order
to make
possible the
death of the
minor before
22h, a story
about
checking on
the McCann
children, as
they slept,
was invented
;
D) Kate and
Gerald
McCann are
involved in
the
concealment
of the body
of their
daughter MMC;
E) On this
date it
seems there
is no solid
evidence
that the
death of the
minor was
not due to a
tragic
accident;
F) Given
what has
been
confirmed so
far,
everything
indicates
that the
couple
McCann, as
self-defence,
does not
want to
deliver
immediately
and
voluntarily
the body,
existing a
high
probability
that the
same was
removed from
the place
where it was
originally
disposed of.
This
situation is
likely to
raise
questions
about the
circumstances
in which
occurred the
death of the
minor.
Thus we
suggest that
minutes be
delivered to
the
prosecutor
of Lagos
aiming :
G) A
possible new
interrogation
of assisted
witnesses Kate
McCann and
Gerald
McCann ;
H)
Evaluating
the adequate
measure of
constraint
to be
applied in
the case
(folio 2601
of the
minutes)" (al.AT).
10. On
10/9/2007
(p. 2680 of
the criminal
investigation), the
prosecutor
in charge of
the
investigation
issued an
order which
in
particular
says this:
"During the
investigation
which goes
on regarding
the
disappearance
of Madeleine
McCann, the
proceedings
being
therefore
open either
to confirm
or to deny
that the
occurrence
of the
disappearance
is related
to the
crimes of
kidnapping,
homicide,
exposure or
abandonment
and
concealment
of corpse,
and in
accordance
with the
established
plan, the
need was
felt to
gather
information
on the
actual time
of the
disappearance,
verify the
location of
each
stakeholder
– from the
McCann
couple to
the group of
friends with
whom they
were on
holiday in
tourist
apartments
in the Praia
da Luz Ocean
Club, i.e
Michelle
Jane Tanner,
Russell
James
O'Brien,
David
Matthew
Oldfield,
Rachael Jean
Mampilly
David
Anthony
Payne, Fiona
Elaine Payne
and Diana
Webster –
when the
events
occurred and
in the
moments that
followed,
and
determine
the
movements of
the assisted
witnesses,
Gerald
McCann and
Kate Healy,
during their
stay in
Portugal,
while also
establishing
connections
between all
stakeholders
and third
parties.
In this
sense, and
because the
following
requested
inquiries
are
essential
for the
discovery of
the truth,
especially
the analysis
of the
information
contained in
the
telephone
exchanges'
... |
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Page 21 |
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Page 21
...between
the McCann
couple and
their
friends, and
other phone
numbers,
which have
shown to be
related to
events of
May 3 2007
evening, the
minutes are
delivered to
the Judge of
Criminal
Investigation
(JCI)”. (12)
11. In page
3170 of the
criminal
investigation,
on
3/12/2007,
the JCI of
Portimão
issued a
decree in
which he
stated
particularly
this:
"Since the
investigation,
in these
autos,
concerns the
practice of
kidnapping,
homicide,
exposure or
abandonment
and
concealment
of corpse,
the first
three crimes
being
punished
with a
sentence of
more than 3
years
imprisonment,
and since it
seems
convenient
to identify
the person
who
exhibited
suspicious
behaviour in
the vicinity
of the place
where the
child
disappeared
from, as
mentioned in
statements
of folios
3150, 3154
and sq,
the data
requested by
the public
prosecutor
being thus
very
important to
discover the
truth, I
order (...)
the
soliciting
telecommunications
operator
Portugal
Telecom.".
12. The
defendant
Gonçalo
Amaral was,
until
2/10/2007,
the PJ
inspector in
charge of
coordinating
the
investigation
into the
disappearance
of the
applicant
Madeleine
McCann.
13. The
defendant GA
is retired
from the PJ
since
1/7/2008 (n°
19).
14. On
21/7/2008,
the Republic
General
Prosecutor
informed
through a
"note for
the social
communication"
that the
investigation
mentioned in
5. would be
shelved and
could be
reopened at
the
instigation
of the
Public
Ministry
or at the
request of
any
interested
party, if
new evidence
brought
forth
serious,
relevant and
consistent
inquiries
(n° 20).
15.
The
archiving
dispatch
concerning
the criminal
investigation,
issued the
21/7/2008 by
the
prosecutor,
says in
particular
this :
"Taking into
account that
certain
points in
the formal
suspects'
('arguidos')
and
witnesses'
statements
revealed
contradiction,
at least
apparently,
or lacked
physical
confirmation,
it was
decided to
carry out
the
"reconstitution
of the
fact", an
operation
that is
consecrated
in article
150 of the
Penal
Process Code
(CPP)
(13)
in the sense
of duly
clarifying,
on the very
location of
the facts,
the very
important
following
details,
among others
:1) The
physical,
real and
effective
proximity
between Jane
Tanner,
Gerald
McCann and
Jeremy
Wilkins, at
the moment
when the
first person
walked by
them, and
which
coincided
with the
sighting of
the supposed
suspect,
carrying a
child. From
our
perspective
it is
strange that
neither
Gerald
McCann nor
Jeremy
Wilkins... |
|
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| Note 12 |
The penal process is divided in 3 phases, the first, mandatory, being the criminal investigation. It is taken in charge by various police forces, directed by the Public Ministry, the PM itself being under the control of a criminal inquiry judge. The second phase is the criminal inquiry. It is not mandatory and has to be requested either by the arguido(s), by the assistant(s) of the process or by a senior magistrate, but never by the Public Ministry. This phase, a kind of recourse against the criminal investigation, is orchestrated by the criminal inquiry judge and culminates in a crucial contradictory debate. Neither the McCann couple nor the "hierarchy" requested the criminal inquiry phase, a manner of agreeing with the conclusions of the criminal investigation. The last phase is eventually the judgement. |
| Note 13 |
The Penal Process Code (http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=199&tabela=leis) |
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Page 22 |
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Page 22
... saw her, or the alleged abductor, despite the
exiguity of
the space
and the
tranquillity
of the area.
2) The situation concerning the window to the
bedroom
where
Madeleine
slept,
together
with the
twins, which
was open,
according to
Kate. It has
seemed
necessary to
clarify if
there was a
draught,
since
movement of
the curtains
and pressure
under the
bedroom door
are
mentioned,
which,
eventually,
could be
verified
through the
reconstitution.
3) The establishment of a timeline and of a line of
effective
checking on
the minors
that were
left alone
in the
apartments,
given that,
if it is
believed
that such
checking was
as tight as
the
witnesses
and the
assisted
witnesses
describe it,
it would be,
at least,
very
difficult to
reunite
conditions
for the
introduction
of an
abductor in
the
residence
and the
posterior
exit of said
abductor
with a
child,
particularly
through a
reduced
width
window. It
is added
that the
supposed
abductor
could only
pass,
through that
window,
holding the
minor in a
different
position
(vertical)
from the one
that witness
Jane Tanner
saw
(horizontal).
4) What happened during the time lapse between
approximately
6.45/7 p.m.
- the time
at which
Madeleine
was seen for
the last
time in the
apartment by
a different
person
(David
Payne) from
her parents
or siblings
- and the
time at
which the
disappearance
is reported
by Kate
Healy - at
around 10
p.m.
5) The immediate appreciation of evidence, or in
other words,
the
fulfilment
of the
principle of
contiguity
of evidence
offers
obvious and
well known
advantages
to form a
conviction,
as firm as
possible,
about what
was seen by
Jane Tanner
and the
other
interposers,
and,
eventually,
to dismiss
once and for
all any
doubts that
may subsist
concerning
the
innocence of
the missing
child's
parents.
To achieve this according to the standards and
conventions
in force,
legal
procedures
were
instituted
and the
presence of
the
witnesses
was
requested,
inviting
them to
participate,
also
appealing to
solidarity
with the
McCann
couple, as
it is
certain that
since the
beginning
they adhered
to that
process
diligence.
Nevertheless, despite national authorities assuming
all measures
to render
their trip
to Portugal
viable, for
unknown
reasons,
after the
many doubts
that they
raised
about...
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Page 23 |
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Page 23
...the
necessity
and
opportunity
of their
trip were
clarified
several
times,
witnesses
chose not to
attend,
which made
the
reconstitution
impractical.
We believe
that the
main damage
was caused
to the
McCann, who
lost the
possibility
to prove
what they
have
protested
since they
were
constituted
arguidos
(14)
:
their
innocence in
relation to
the fateful
event. The
investigation
was also
disturbed,
because said
facts
remained
without
clarification
(...).
This
(15) shows
that the
parents were
not
persistently
worried
about their
children
[and] that
they didn't
check on
them like
they
afterwards
declared
they did,
rather
neglecting
their duty
to protect
those same
children,
although not
in a
temerarious,
or gross,
manner (...)
While the
fact that
Madeleine
disappeared
from
apartment 5A
of the
resort Ocean
Club is
inescapable,
the manner
and
circumstances
under which
this
happened are
unknown -
despite the
numerous
diligences
made on that
purpose -,
therefore
the range of
crimes that
were
conjectured
and referred
to during
the
investigation
remains
untouched
(...)
Concerning
the other
surmised
crimes (16),
they are no
more than
that and in
spite of our
perception
that, due to
its high
degree of
probability,
the
occurrence
of a
homicide
cannot be
discarded,
such cannot
be more than
a mere
supposition,
due to the
lack of
supporting
elements in
the files.
It appears
that the non
involvement
of the
parents,
assisted
witnesses,
in any
penally
relevant
action stems
from the
objective
circumstances
of them not
being inside
the
apartment
when
Madeleine
disappeared,
from the
normal
behaviour
that they
displayed
until said
disappearance
and
afterwards,
as can be
amply
concluded
from witness
statements,
from the
telephone
communications
analysis and
also from
the
forensics'
conclusions,
namely the
reports from
the
(Birmingham)
Forensic
Science
Service (FSS) and
from the
National
Institute
for Legal
Medicine.
To this
should be
added that
in fact none
of the clues
that led to
their
constitution
as “arguidos"
was later
confirmed or
consolidated.
Let's judge
it: the
information
concerning a
previous
alert of the
media before
the police
was not
confirmed,
the residues
that were
marked by
the dogs
were not
corroborated
in
laboratory,
and the
initial
indications
from the
above
transcribed
email
(17) better
examined
afterwards,
that ended
up appearing
to be
inconclusive.
Even if
hypothesising
that Gerald
and Kate
McCann might
be
responsible
over the
child's
death, it
would still
have to be
explained
how, where,
when, with
what means,
with whose
help and
where to
they freed
themselves
of her body
within the
restricted... |
|
|
| Note 14 |
An "arguido" is a formal suspect, against whom certain supported elements exist, but who is endowed with the presumption of innocence, a principal that here is fully realised. This status is attributed, in order to establish the material truth, on suggestion of the police by the Public Ministry which assumes the responsibility of doing do. The arguido (a) has, it is mandatory, to be assisted by a lawyer. In French an arguido is a "témoin assisté". |
| Note 15 |
The fact that, according to Pamela F, a child, possibly MMC, had cried during more than an hour on May 1 |
| Note 16 |
"crimes that aren't associated to neglect”. |
| Note 17 |
The email on the preliminary DNA analysis by the FSS of the samples collected in the car hired by the MCs |
|
|
|
|
 |
| |
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|
Page 24 |
|
Page 24
... time
frame that
would have
been
available
for them to
do so. Their
daily
routine,
until the
3rd of May,
had been
circumscribed
to the
narrow
borders of
the Ocean
Club resort
and to the
beach next
to it,
unknowing
the
surrounding
and, apart
from the
English
friends that
were with
them on
holiday,
they had no
known
friends or
contacts in
Portugal (…)
Tests and
analyses
were
performed in
two of the
most
prestigious
and
credentialed
institutions
- the
National
Institute
for Legal
Medicine and
the British
Forensic
Science
Service -,
their final
results
having
neither
positively
evaluated
the
collected
residues nor
corroborated
the dogs'
alerts.
In spite of
all this, it
was not
possible to
obtain any
evidence
that would
allow for a
average man,
enlightened
by criteria
of logics,
of norms and
of the
general
rules of
experience,
to formulate
any lucid,
sensate,
serious and
honest
conclusion
about the
circumstances
under which
the child
was removed
from the
apartment
(whether
dead or
alive,
whether
killed in a
neglectful
homicide or
an intended
homicide,
whether the
victim of a
targeted or
opportunistic
abduction),
nor even to
produce a
consistent
prognosis
about her
destiny and
inclusively
– and that's
the most
dramatic -
to establish
whether she
is still
alive or, as
it seems the
more likely,
she is dead.
Therefore,
everything
having been
examined,
analysed and
duly
pondered,
considering
what is left
exposed, we
determined
the
archiving of
the autos
concerning
the (by
lawyer)
assisted
witnesses
Gerald
Patrick
McCann and
Kate Marie
Healy, due
to the lack
of clues of
their
practising
any crime”.
16. The
defendant Guerra
& Paz,
Editores SA is
a commercial
company
whose
objective is
namely
editing,
publishing
and trading
books,
import and
export
included.
17. On
10/03/2008,
defendants Guerra
& Paz,
Editores SA and
Gonçalo
Amaral
celebrated a
written
agreement
(attached at
pp.
277-281),
referred to
as
"copyright
transfer
contract",
in terms of
which the
defendant GA
yields to
defendant
G&P for a
period of
ten years,
the
exclusivity
of
copyrights
of the book
Maddie -
a Verdade da
Mentira
in printed
or
electronic
form, in any
language
and in the whole world.
18. The 4a
-1 clause of
the
agreement is
worded as
follows :
"The
remuneration
to be paid
by the first
contractor
to the
second
contractor,
for
copyrights
associated
with
editions of
his book
commercialised
in Portugal,
will be : a)
12 % of the
selling
price for
each copy
sold (VAT
excluded) up
to 30.000
copies b) 14
% of the
selling
price for
each copy
sold (VAT
excluded)... |
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Page 25 |
|
Page 25
… from
30.001 to
50.000
copies c)
16% of the
selling
price for
each copy
sold (VAT
excluded)
from 50.001
on".
19. 5a-2
clause of
the
agreement is
worded as
follows :
"If the
first
contractor
sells the
copy rights
of the book
in other
languages
in any country, the liquid income of this sale, net of costs directly
related to
the sale
transaction,
will be
shared
between the
first and
second
contractors
in equal
parts, i.e
50% for
each".
20. The
defendant
Gonçalo
Amaral is
the author
of the book
Maddie -
A Verdade da
Mentira,
published by
the
defendant Guerra
& Paz,
Editores SA.
21. On the
cover of the
book stands,
in red, the
word
"confidential"
and on the
4th cover it
reads
"Reserved
reading" and
"contains
unique
revelations".
22. The data
sheet of the
book (p. 4)
says namely
this :
"Review:
Fernanda
Abreu. Cover
and
pagination :
Ilidio J.B.
Vasco.
Photography
author :
Sandra Sousa
Santos © Guerra
& Paz,
Editores SA.
2008. All
rights
reserved. ©
Cofina media
for
photographs
and info
engraving,
developed by
Nuno Costa."
23. Is part
of "Maddie –
A Verdade da
Mentira"
particularly
the
following
prologue:
This book is
rooted in
the need I
felt to
restore my
reputation,
which has
been
undermined
in the
public
arena,
without the
institution
to which I
have
belonged for
26 years,
the
Portuguese
Judicial
Police,
allowing me
to defend
myself or to
do it
institutionally.
I asked
permission
to speak in
this sense,
that request
remained
unanswered.
I strictly
followed the
rules of the
PJ and I
kept silent.
This,
however,
lacerated my
dignity.
Later I was
removed from
the
investigation.
I realised
then that
the time had
come to
defend
myself
publicly.
To achieve
this, I
immediately
asked an
early
retirement,
in order to
regain the
fullness of
my freedom
of
expression.
This book
has yet
another
major
objective.
That of
contributing
to the
discovery of
material
truth so
that justice
is done in
an
investigation
known as
"The Maddie
Case". These
are the
fundamental
values to
which I
subscribed
by
imperative
of
conscience,.. |
| |
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|
Page 26 |
|
Page 26
...conviction and discipline regarding the
institution
to which I
was proud to
belong. My
retirement
will not
extinguish
these
values,
they'll go
on being
present in
my life.
This book does not question the work of my
colleagues
in the
police or
compromise
the ongoing
investigation.
It is my
profound
understanding
that
revealing
all the
facts, in
this type of
work, could
jeopardise
future
operations,
critical for
the
discovery of
the truth.
However,
readers will
discover
data that
they ignore,
interpretations
of facts -
always in
the light of
law - and,
of course,
relevant
questions.
A criminal investigation compromises only with the
search for
material
truth.
It should not be concerned about political
correctness.
(pp. 11-12)
(…)
Many things were told so far - truths and lies - and
there was,
apart from
the duty to
provide
information,
disinformation
campaigns
aimed at
discrediting
the criminal
investigation
in
development
and those
who were
responsible
for it. For
me the
investigation
ceased to
exist on
October 2,
2007, when
it appeared
to have
outweighed a
new English
ultimatum on
the day of
the summit
on the
Lisbon
Treaty, so
nothing
surprised me
more. The
previous day
I had
attended an
nth media
spectacle,
the ultimate
forcing to
the thesis
of the
kidnapping
with the
disclosure
by the
McCann
family of a
sketch of a
suspected
abductor.
Nothing
surprises me
anymore.
- Do not pay attention. It's carnival.
We continued our convenient conversation, but I felt
that my
world had
like
collapsed
for good.
After hanging up, I spotted again the almond trees,
planted in
the hard
Algarvian
ground, a
soil that
could have
influenced
the corpse
concealment
strategy
and, I
thought,
wouldn't God
have dashed
in making
them bloom
in winter ?
(p.16) (...)
An investigation destined for shelving.
I have a feeling that with this statement, the
national
director
intends to
prepare the
public
opinion for
the
inevitable,
i.e for the
end of the
investigation
and the
shelving of
the case.
That seemed
to be the
strategy
adopted on
October 2
2007, which
was
consolidated
with the
execution of
tasks to
fulfil the
calendar, a
bit "for the
English
see". I
feared
immediately
for the
present
investigation
to be
questioned... |
| |
 |
| |
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|
Page 27 |
|
Page 27
...so as to
facilitate a
possible
shelving.
This
investigation
had come to
undermine
the image of
the PJ, its
inspectors
and
Portugal,
and that's
why perhaps
it had to be
discontinued.
The
constitution
of Kate
Healy and
Gerald
McCann,
Madeleine's
parents,
as “arguidos"
should have
marked a
turnaround
in the
relationship
among the
police
forces and
the couple.
If, on the
Portuguese
police side,
the break
occurred, it
seems that
the same
cannot be
said of the
English
police.
There was an
agreement
between the
two police
forces to
move forward
in an
investigation
that was
seriously
considering
the
possibility
that the
child died
in the
apartment,
but suddenly
the English
police
veered
without
consistent
technical
explanation
- as we
shall see
further. We
have always
found it odd
the way the
couple were
treated,
even after
they got
their
arguido
status, and
their
eventual
access to
police
information.
I see the
mentally
investigation,
the memories
gush
cascaded.
I think
mainly of
this child
about to be
4 years old,
who all of a
sudden was
denied the
right to
existence,
to become a
woman, to a
life of
happiness
and
potential
success in
the company
of her
family and
her friends,
that was
abruptly
lost.
Nothing
makes sense.
It seems
that
smothering
the facts by
decreasing
the strength
of any clue
is being in
preparation,
forgetting
the rights
of this
child and of
others too.
But who
wants such
an outcome ?
Who demanded
my removal
from the
operational
coordination
of the
investigation
? Who wants
to end the
status of
the McCanns
and Murat as
assisted
witnesses ?
Those who
insist on
the thesis
of the
kidnapping ?
Those who
claimed, and
later I will
say who they
are, that
people were
arrested for
much less in
England ? Or
those who
persist in
lying,
forgetting
the search
for the
material
truth ? The
possible
shelving of
the
investigation
and the end
of the
searches
certainly
favour
someone.
After
leaving Portimão,
October 2,
2007, I
decided to
forget this
case. It was
perhaps
better,
given the
powers that
seemed to be
involved.
If the
authorities
of the
native
country of
the child
are
unwilling to
know what
happened to
her, feeding
the thesis
of the
kidnapping,
why should I
be concerned
? This is
not the
inopportune
(or induced
by the
journalist)
remark of a
police
director
(24) that
will erase
the existing
evidence (it
was not the
intent as
well), our
work is set
in the stone
of the
autos. Would
those be
destroyed in
order to
erase what
has been
done, even
then, we
still have
our memories
and the
memories of
those who
have carried
out with us
at arm's
length the
arduous task
of trying to
find the
material
truth (
pp.19-20)
(…) |
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Page 28 |
|
Page 28
Yes, a child
has died.
And I do not
say it by
value
judgment,
but by
deduction
based on the
collection
of
information,
hints and
proven facts
contained in
the autos.
(p.21) (...)
The caution
of a
decision
In Portimao
I meet Chief
Inspector
Tavares de
Almeida, who
was part of
the team
which I
coordinated.
We have
known each
other since
we entered
the PJ. The
words of the
national
director
worry him,
he speaks of
an
investigation
request,
already
filed with
the national
director of
the PJ. He
says the
investigation
of our work
will restore
the truth.
During the
five months
investigation,
we heard a
little of
everything ,
but we have
done our
job.
We remember
what we have
done, the
efforts and,
honestly, we
are not sure
that others
could have
done better.
This is not
self-sufficiency,
it is
confidence
in the
rigour of
the work of
all police
officers
involved.
– Look ! These people (18),
do
they know
how to sum
things up ?
How can one
speak of
precipitation
when the
McCann
became
assisted
witnesses
four months
after the
facts ? Do
not they
know the
principle of
non-self-incrimination
?
He was
referring to
the legal
prohibition
to take the
testimony of
a person as
a witness to
the point
where that
person might
let know
facts that
would
eventually
incriminate
them. In
other words,
when someone
is about to
make
statements
on a
specific
case and
when, at
some point,
it appears
that this
person might
be involved
or
responsible
for the
practice of
an unlawful
act, this
person has
to be made
"arguido(a)".
So are
preserved
the rights
and duties
of citizens.
Curiously,
and contrary
to what we
see very
often in the
press,
especially
in the
English
media, the
arguido
status
protects the
(by lawyer)
assisted
witnesses,
since they
can keep
silent and
thus avoid
making false
statements -
as in the
case of a
simple
witness.
– I agree
with you. If
errors were
made in this
investigation,
the delay in
changing the
status of
the McCanns
is one of
them. There
was too much
politics and
not enough
police.
– Well, I
wouldn't go
that far.
The error
was to treat
the couple
"with
tweezers".
Remember how
very soon we
saw that
many things
did not fit
and that the
McCanns were
entitled to
privileges.
That is not
normal !
(p.23) |
| |
| Note 18 |
One could imagine that GA is referring to the unfortunate words (the British police was following the MC instead of maintaining a critical distance) that motivated, matter of diplomacy, his dismissal of the case by the national director of the PJ, Alípio Ribeiro, but no, he evokes the suggestion of a precipitate 'arguido' status made by the latter to the journalist of the daily Público on 02/02/2008) i.e 4 months later. |
|
|
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|
Page 29 |
|
Page 29
– Maybe
the national
director
thinks that
the McCanns
left the
Algarve
because of
the arguido
status.
– They
stayed in
the Algarve
as long as
the
abduction
thesis was
talked
about...
When this
thesis was
questioned ,
they
immediately
started
talking
about
returning to
England.
– Hence
we can
conclude
that the
arguido
status was
only a
pretext to
abandon the
country.
– You
know, there
are British
journalists
who believed
that
Portugal was
a country of
the third
world ... I
did not
agree and I
have not
changed my
mind,
however only
in countries
of the third
world the
head of a
ongoing
criminal
investigation
is removed
whereas he
was not
implicated
by the
investigation
that he led.
– There
is much talk
of
governmentalization
of justice
... we
forget how
influence
can affect
any criminal
investigation
can be
influenced...
- It's easy
... Trustful
police
officers are
made
responsible
for the
investigation...
Then, if
things go
wrong, the
responsible
ones are
replaced ...
– I don't
think it was
the
fundamental
reason, but
...
– There
are always
valid and
legal
elements ...
Finally. The
only
obstacle to
the
management
of the
investigation,
almost
political
... are the
senior
leaders of
the police
forces.
They must
confront bad
situations
and contrary
to the
interests of
the
investigation.
They may not
agree with
everything
on the sole
purpose of
staying on
to power ...
– My
friend ...
People do
not direct
the police
forces for
personal
interest ...
They lead in
the pursuit
of the
public
interest.
This is the
only way to
understand
the role of
the police
in a
democratic
State of
law.
-- But think
for a while
! We can get
to the point
where only
officers
agreed by
the arguidos
will be in
charge of
some
investigations
... It could
be a
question of
'modernity '
.
Fraud or
breach of
trust ?
During a
relaxation
moment in
one of these
meetings
(27), I
would have
committed a
gaffe or,
who knows,
been
inconvenient
and
undiplomatic.
Concerned
with the
possibility
that the
McCann
couple might
be, in one
way or
another,
involved in
the
disappearance
of their
daughter,
and as I
reckoned the
types of
crimes that
could be
imputed to
them, a fact
came to my
mind. Were
the
responsibility
of McCann
actually
confirmed,
then the
crime of
fraud or
breach of
trust
concerning
the fund
created to
search for
Madeleine,... |
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|
Page
30 |
|
Page 30
... a fund
that held
more than 2
million
pounds,
would
follow. The
debate was
open and, in
fact, the
assumptions
pointed to
the
aggravated
fraud or
breach of
trust
crimes, but
it did not
belong to
Portugal to
investigate
and judge
such a
crime. It
belonged to
the UK, as
the fund was
registered
there. Our
English
colleagues
became then
aware of a
harsh
reality: the
strong
possibility
of a crime
to be
investigated
in their
country,
having the
McCanns as
possible
suspects, a
prospect
that did not
seem to
please them.
I noticed
the sudden
pallor that
invaded
their faces.
(p.193) (…)
A
disappearance
, a window
and a dead
body
Reached this
point, it is
important to
make a
deductive
synthesis of
this case.
In other
words,
reject what
is false ;
discard what
you cannot
prove for
lack of
sufficient
evidence ;
indicate as
valid and
established
what was
proven .
So :
1. The
thesis of
the
abduction
has been
defended by
Maddie 's
parents
since the
first hour;
2. Within
the group,
only the
parents
claim to
have seen
open the
window in
the missing
child's
bedroom ;
most (
travelling
companions )
cannot
reliably
testify on
this point,
as they ran
towards the
apartment
only after
Kate McCann
launched the
alarm.
3. The only
independent
statement
mentioning
the open
window and
shutters was
made by one
of the Ocean
Club
nannies,
Amy, who
arrived at
22:20/30,
pretty after
the alert,
turning
hence her
statement of
no use for
the crime
time topic.
4. All
statements
and
testimonies
reveal
numerous
inaccuracies,
incongruities
and
contradictions
- some could
even be
described as
false
testimony.
In
particular
the
key-testimony
for the
abduction
thesis, that
of Jane
Tanner,
loses all
credibility
due to
constant
evolution
which makes
it ambiguous
and
disqualified
.
6. There is
a unlocated
body, an
ascertainment
confirmed by
the English
EVR
(Enhanced
Victim
Recovery)
and CSI
(Crime Scene
Investigation)
dogs and
corroborated
by
laboratory's
preliminary
reports
(pp.219-220)."
24. The
defendant
Gonçalo
Amaral
concluded
his book
"Maddie - A
Verdade da
Mentira" as
follows :
" For me and
for the
inspectors
who worked
on this case
until
October
2007, the
investigation
findings
include : |
| |
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Page
31 |
|
Page 31
1) The minor
Madeleine
McCann died
in the
apartment 5A
of Vila da
Luz, Ocean
Club, on the
evening of 3
May 2007;
2) There has
been a
simulation
of
kidnapping ;
3) Kate
Healy and
Gerald
McCann are
suspected of
involvement
in the
concealment
of their
daughter's
body;
4) Death
could have
occurred as
a result of
a tragic
accident.
5) There are
clues of
neglect in
the
protection
and safety
of children
( pp.220-221
)."
25. The book
"Maddie - A
Verdade da
Mentira" was
launched on
24/07/2008
in El
Corte Inglês
Shopping
Centre
in Lisbon.
26. On the
launch day
(24/07/2008),
the book was
also sold
with the
newspaper
CdM.
27. The book
Maddie ,
a Verdade da
Mentira
had the
following
editions in
Portugal :
1st edition
in July
2008, 30.000
printed
copies ; 2nd
in July
2008, 10.000
printed
copies ; 3rd
in July
2008, 10.000
printed
copies ; 4th
in July
2008, 30.000
printed
copies ; 5th
in August
2008, 25.000
printed
copies ; 6th
in August
2008, 10.000
printed
copies ; 7th
in August
2008, 15.000
printed
copies ; 8th
in August
2008, 10.000
printed
copies ; 9th
in August
2008, 10.000
printed
copies ;
10th in
August 08,
10.000
printed
copies ;
11th in
August 08,
10.000
printed
copies ;
12th in 2008
10.000
printed
copies.
28. The book
was
published
through
other
editors in
the
following
countries :
Spain,
September
2008, with
the possible
trading in
Spanish in
South
American
Spanish
speaking
countries ;
Denmark,
November
2008, with
possible
commercialisation
in other
Nordic
countries ;
Italy ,
December
2008, with
the
commercialisation
in Italian
for all the
world ;
Holland,
April 2009,
with
commercialisation
in Dutch for
all the
world ;
Germany,
June 2009
with
commercialisation
in Austria
and
Switzerland.
29. Within
the scope of
the
injunction
attached
there were
only around
7.000 copies
of the book
delivered to
the
applicants
legal
representative |
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Page 32
30. Copies
of an
English and
Portuguese
version
circulate in
the internet
without the
authorisation
of Guerra
& Paz,
Editores SA.
31. The
cover price
of the
book "Maddie
- A Verdade
da
Mentira" in
Portugal was
determined
by the
defendant Guerra
& Paz,
Editores SA on
the amount
of 13.33 €
VAT included
(n° 2).
32. The sale
of the books
was partly
on
consignment
and another
part subject
to right of
return for
reasons such
as faults,
use or not
being sold
(n° 23).
33. The
defendant
Gonçalo
Amaral
received the
following
amounts from
the sale of
the book:
2008 and
2009, the
amount of €
342.111,86
(n°s 3 and
4).
34. The
defendant, Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA is a
commercial
society that
creates,
develops,
produces and
promotes the
exhibition
and
broadcast of
cinematographic
and
audiovisual
works.
35. On March
7 2008, the
defendant Gonçalo Amaral and
the
defendant Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA signed
a written
agreement
(pp.
282-283)
designated
"option of
rights –
deal
demo” through
which the
defendant GA
gave up the
exclusive
rights of
film
adaptation
(documentary
and fiction)
of a book
about the
investigation
of the
disappearance
in Praia da
Luz.
36. On March
11 2008, the
defendant Gonçalo Amaral and
the
defendant Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA signed
a written
agreement
(pp.
284-288) ,
designated “transfer
of rights –
option
contract” through
which the
defendant Gonçalo Amaral gave
up to the
defendant Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA for 2
years the
exclusive
option
rights to
adapt the
book into
documentary
and/or
fiction that
may have the
format of a
film for
cinema or a
TV movie.
37. Clause 2
of this
agreement
states the
following:
By the
transfer of
these
exclusive
right of
option, Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA compromises
to pay the
author the
gross sum of
25.000,
subject to
legal fees
and added
VAT.
38. Clause 4
of this
agreement
states the
following :
1)
Concerning
the
adaptation
of the book
into
documentary,
the author
commits
himself to
participate
as a
narrator,
transferring
all image
and sound
rights. 2)
For that
participation
and transfer
of all... |
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…
the
patrimonial
content of
author
rights to Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA the
author will
receive the
gross sum of
15.000 euros,
subject to
legal fees.
3) For the
transfer of
rights
mentioned in
2) the
author will
receive 10%
of all
receipts
national or
international
receipts for
the trading
of the
documentary
(in all
platforms
and supports
invented or
yet to be
invented)
after
deduction of
production
costs.
39. On
6/06/2008,
the
defendant Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA agreed
with Valentim
de Carvalho-Multimedia
SA to
transfer to
the latest
all trading,
distribution
and
exhibition
and
broadcast of
a group of
cinematographic
and
audiovisual
works (film,
mini-series,
documentaries)
that the
latter
intends to
produce
within 5
years. (n°
30)
40. The
defendant Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA produced
the
documentary
Maddie,
The Truth of
the Lie,
directed by
Carlos
Coelho da
Silva, which
is an
adaptation
of the book
written by
the
defendant
Gonçalo
Amaral. This
documentary,
in DVD
format, is
appended to
the files.
41.At the
beginning of
the
documentary,
the
defendant
Gonçalo
Amaral
states the
following:
My name is
Gonçalo
Amaral and I
have been an
inspector
for the
Judiciary
Police for
27 years. I
co-ordinated
the
investigation
into the
disappearance
of Madeleine
McCann on
the 3rd of
May 2007.
During the
next 50
minutes I
will prove
that the
child was
not abducted
and that she
died in the
holiday
apartment in
Praia da
Luz.
Discover all
the truth
about what
happened
that day. A
death that
many want to
cover up.
42. At the
end of the
documentary,
the
defendant
Gonçalo
Amaral
states the
following:
What I know
tells me
that
Madeleine
McCann died
in apartment
5A on the
3rd of May
2007. I am
certain that
this truth
one day will
be
ascertained.
The
investigation
was brutally
interrupted
and there
was a hasty
political
archival.
Some are
hiding the
truth but,
sooner or
later, the
varnish will
crack and
revelations
will
surface.
Only then
will there
be justice
for
Madeleine
McCann.
43. The
defendant, Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA concludes
the
documentary
with this
statement :
The mystery
remains, the
former
inspector
believes
that one day
the truth
will be
known. For
now, we are
aware only
that on the
3rd May of
2007,
Madeleine
McCann
disappeared
in Praia da
Luz. She was
3 years old
and she was
a happy
child. |
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Page 34
44. In the
sequence of
deliberations
on the
October 27,
2008, it was
decided to
increase the
share
capital of
the
defendant Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA, an
increase
that was
registered
on September
28, 2009,
the capital
of the
company
being held
in the
proportion
of 60% by
Estudios-Valentim
de
Carvalho-Gravações
e
Audiovisuais
SA and
40% by the
Fundo de
Investimento
para o
Cinema e
Audiovisual.
(n° 29)
45. On April
13, 2009 and
May 12, 2009
the
documentary
was
broadcast by
the
defendant TVI-Televisão Independente
SA.
46. Before
the
documentary’s
broadcast,
the
defendant
TVI-Televisão Independente
SA
issued this
statement :
The
following
program is a
documentary
based on the
book by
Gonçalo
Amaral,
former PJ
Inspector
who
investigated
the
disappearance
of Madeleine
McCann in
the Algarve.
His version
of events is
denied by
Maddie’s
parents who
continue to
insist that
it was an
abduction.
The criminal
investigation
carried out
by the
Portuguese
authorities
ended with
the shelving
of the
files, a
decision
contested by
Gonçalo
Amaral.
Rather than
finding
those
responsible,
a task for
the justice
system, the
broadcast of
this
documentary
aims at
shedding
some light
and provide
facts that
might help
understanding
a case that
has remained
a mystery
for almost
two years.
47. At least
two million
and two
hundred
thousand
people
watched the
program
broadcast
by TVI-Televisão Independente
SA on
13.04.2009 (n°
10).
48. The
defendant
Goncalo
Amaral gave
to the
newspaper
CdM an
interview,
conducted by
the
journalists
Eduardo
Damaso and
Henrique
Machado and
published on
the July 24
2008. Its
contents is
totally
reproduced
and
announced on
the front
page, having
been
attributed
to GA in
particular
the
following
statements :
CdM : As
the case
investigator,
what is your
thesis?
GA : The
little girl
died in the
apartment.
Everything
is in the
book, which
is faithful
to the
investigation
until
September
(2007). It
reflects the
understanding
of the
Portuguese
and English
police
forces and
of the
Public
Ministry.
For all of
us, until
then, the
concealment
of the
cadaver, the
simulation
of abduction
and the
exposure or
abandonment
were proved.
CdM :
What led you
to indict
the McCanns
over all of
those
crimes? |
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Page 35
GA : It all started with the parents' pressure to an
abduction
theory. And
the
abduction is
based on two
facts: one
is Jane
Tanner's
testimony
that says
she saw a
man passing
in front of
the
apartment,
carrying a
child (on
his arms);
the other is
the bedroom
window,
which,
according to
Kate, was
open when it
should have
been closed.
It was
proved that
none of that
happened.
CdM : How did you prove that ?
GA : Jane Tanner is not credible: she identifies and
recognises
different
people. She
starts with
Murat, then
someone else
is
mentioned,
according to
the drawing
done by a
witness, and
she says
that is that
person,
somebody
completely
different
from Robert
Murat.
CdM : Did Jane Tanner's testimony point towards the
abduction
thesis ?
GA : In order to follow that direction, it would have
been
necessary to
give her
credit:
there was no
other
abduction
clue. And
the window
of the
bedroom
where Maddie
and her
siblings
slept is a
vital issue.
It leads to
simulation.
In other
words, was
it open or
not when
Jane says
she saw the
man carrying
the child?
The little
girl’s
mother,
Kate, is the
only person
that
mentions the
open window.
CdM : Does this deconstruct the abduction thesis ?
GA : There lies the solution. The door closed or not is
a strong
clue for
simulation.
And why does
one simulate
abduction,
rather than
simply
saying that
the child
has
disappeared?
She could
have opened
the door and
left…
CdM : Do Kate’s fingerprints reinforce the simulation
theory?
GA : They are the only fingerprints on the window. And
in a
position of
opening the
window.(…)
CdM : What do you think happened to the body?
GA : Everything indicated that the body, after having
been at a
certain
location,
was moved
into another
location by
car, some
twenty days
later. With
the residues
that were
found inside
the car, the
little girl
had to have
been
transported
inside it.
CdM : How can you affirm that?
GA : Due to the type of fluid, we policemen, experts,
say that the
cadaver was
frozen or
preserved in
the cold and
when placed
into the car
boot, with
the heat
there was
then, part
of the ice
melted. On a
curb, for
example,
something
fell on the
boot's right
side, above
the wheel.
It may be
said that
this is
speculation,
but it's the
only way to
explain what
happened
there.
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Page 36
CdM : If
the body was
hidden in
the beach
area first,
was it
always out
of reach for
the
searches?
GA : The
beach was
searched at
a time when
it is not
known
whether the
body was
still there.
Dogs were
used, but
sniffer dogs
have
limitations,
like the
salted water
for example.
Later on, it
might have
been
removed.
49. The
defendant
Gonçalo
Amaral
issued the
above
mentioned
affirmations.
(n° 1)
50. The
defendant
Gonçalo
Amaral gave
interviews
to the
defendant TVI-Televisão Independente
SA on
the 16.05.
and the
27.05.2009.
51. By the
end of April
2009, the
documentary
went on sale
on DVD with
the title
"Madeleine
the Truth of
The Lie” - A
Powerful
Documentary
based on the
best seller
“Maddie - A
Verdade da
Mentira” by
Gonçalo
Amaral.
52. The
above
mentioned
DVD was
edited and
the edited
copies were
traded by Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA through
agreement
with
Presselivre-Imprensa
Livre SA. (n°
8)
53. 75.000
copies of
the DVD were
distributed
for sale.
54. 63.369
copies of
the DVD were
not sold,
having
subsequently
been
destroyed. (n°
18)
55. On the
video cover
the word
“confidential”
is written
in red.
56. The DVD
was sold by Presselivre-Imprensa
Livre SA as
an insert
with the
newspaper
CdM owned by
the same
company, at
the price of
€ 6,95 (six
euros and
ninety five
cents, VAT
included). (n°
6)
57. To date,
the
documentary
was only
once
reproduced
to be
edited,
published
and
commercialised
in Portugal
in video
format, DVD
referred to
in point
42. (n° 31)
58.
Reproduction
and editing
of the video
documentary
format was
authorised
by Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA to Presselivre-Imprensa
Livre SA ,
which owns
the
newspaper
CdM,
according to
the
agreement
between both
established. (n°
32)
59. Under
which
(contract),
the DVD, its
cover and
packaging
would be,
and were,
made
by account, order and under the responsibility of Presselivre-Imprensa
Livre SA,
to be
distributed
and
commercialised
jointly with
the
newspaper
CdM. (n° 33) |
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Page 37
60. And the
whole
process of
registration
and
classification
of the video
(DVD)
edition of
the
documentary
with the
IGAC (General
Inspection
of Cultural
Activities) would
be, and it
was,
developed
by Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA,
being Presselivre-Imprensa
Livre SA that
would
support the
costs, and
it did. (n°
34)
61. The DVD
of the
documentary
was
distributed
for sale
together
with the
distribution
for sale of
the
newspaper
CdM. (n°
35)
62. The
defendant
Gonçalo
Amaral
earned by
selling the
DVD, in
2008, the
amount of
€40.000. (n°
7)
63. The
documentary
was
reproduced,
including
subtitled in
English by
others who
spread it on
the Web
without the
consent and
against the
will of the
defendant Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA. (n°
36)
64. This
illicit
diffusion
undermines
not only the
rights held
by the
defendant Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA on
the
documentary,
but also its
commercial
exploitation,
as any
citizen can
access the
documentary
with just
one
"click". (n°
37)
65. The
Republic
Prosecutor
Office in
Portimão
determined
the creation
of a digital
copy of the
investigation
process,
with the
exception of
parts
subject to
absolute
secrecy, and
its
delivery,
upon
request, to
several
people,
including
journalists,
which
occurred.
66. The
content of
such a
digital copy
was made
public,
including
through the
Web, having
been
publicly and
universally
read,
commented
and
discussed.
67. The
claimants
Kate and
Gerald
McCann have
alerted the
press about
the
disappearance
of their
daughter.
68. The
claimants Kate
and Gerald
McCann gave
an interview
to the
North-American
TV program
“Oprah"
hosted by
Oprah
Winfrey,
revealing
the
existence of
new
witnesses,
reconstructions (19) and
e-fits.
69. The
Oprah
interview
was worldly
broadcast by
signals
available
through
satellite
and cable
networks.
70. This
interview
for the
Oprah
program was
broadcast in
Portugal by
the (TV
Private
Channel)
SIC, on the
9.05 and
12.05.2009.
71. The
claimants Kate
and Gerald
McCann, in
collaboration
with the
British
television
station
Channel 4,
made a
documentary
about the
disappearance
of their
daughter,
entitled
Still
missing
Madeleine,
lasting
60'. |
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| Note 19 |
"Reconstituições", in the original document, is here translated "reconstructions", since this is what is meant. In Inquisitorial Justice Systems a reconstitution aims to recreate an event with the proper protagonists, in an attempt for the police forces to understand what happened. It is quite different in Adversary Justice Systems where a reconstruction is the re-enacting of an event with actors and in front of cameras in order to jog the memories of the public. |
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Page 38
72. On
15.04.2009,
the
defendant TVI-Televisão Independente
SA signed
a license
preliminary
agreement
for
broadcasting,
exclusively
in Portugal,
the
documentary
Still
Missing
Madeleine
for 35,000
€.
73. The
claimants
Kate and
Gerald
McCann asked
that the
license for
broadcasting
the
documentary Still
Missing
Madeleine would
not be
attributed
to the
defendant TVI-Televisão Independente
SA.
74. The
documentary Still
Missing
Madeleine,
translated
Maddie, Two
Years of
Anguish,
was
broadcast by
(the TV
Channel)
SIC on
12.05.2009.
75. On
17.10.2007,
Clarence
Mitchell,
spokesman
for KMC and
GMC said
they were
realistic
enough to
admit that
their
daughter
would
probably be
dead.
76. There
was a huge
public
interest in
Portugal and
throughout
the world,
about the
events
surrounding
the
disappearance
of Madeleine
McCann, the
investigations
carried out
to find her
and to
determine
what in fact
happened,
their
evolution
and
vicissitudes,
among which
the
constitution
of the
claimants
Kate and
Gerald
McCann as
suspects in
the
investigation
process and
the removal
of the
defendant
Gonçalo
Amaral from
investigations
that were
developed
under his
coordination.
77. The
claimants
Kate and
Gerald
McCann
hired,
through
Madeleine's
Fund, PR
firms and
spokesmen.
78. The
so-called
Maddie case
has been
deeply
treated in
the
Portuguese
society and
in foreign
countries,
either by
media organs
or in books,
like the
works of
Paulo
Pereira
Cristovão,
Manuel
Catarino and
Hernani
Carvalho.
(n° 24)
79. The
so-called
Maddie case
was
commented by
Dr.
Francisco
Moita
Flores,
former
Inspector,
writer, and
criminologist,
as a
columnist in
various
media. (n°
25)
80. The
facts
related to
the criminal
investigation
of Madeleine
McCann's
disappearance
that the
defendant
Gonçalo
Amaral
refers to in
the book, in
an interview
with the
newspaper
CdM and in
the
documentary
are mostly
facts that
occurred and
are
documented
in this
investigation. (n°
27 and 28) |
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Page 39
81. As a
result of
the
defendant
Gonçalo
Amaral's statements
in the book,
the
documentary
and
interview
with the CdM, the
claimants
Kate and
Gerald McCann
felt anger,
despair,
anguish, worry, and
were
suffering
insomnia and
lack of
appetite
(n°13)
82. The same
claimants
feel unease
because they
are considered
by people
who believe
in Gonçalo
Amaral's
thesis
about the
disappearance
of Madeleine
McCann, as
responsible
for
the concealment of
the body and
as authors
of the
simulation
of
her abduction. (n°14)
83. The
claimants
Kate and
Gerald
McCann feel,
with
deep concern,
the need to
keep their
young
children far
from the
thesis referred
to above. (n°15)
84. Sean and
Amelie
McCann
entered the
school in
August 2010
without
knowledge of
the
defendant's
thesis
referred to
above. (n°17)
(20)
Unproven
Facts (the
proven facts
started on
p.19)
a) that the
cover price
of the book
"Maddie-The
Truth of the
Lie" in
Portugal is
of € 13,80,
VAT
included,
b) that the
defendant Gonçalo
Amaral had
earned from
the sale of
the
Portuguese
edition
of the book
'Maddie-The
Truth of the
Lie' an
amount not
less than 621.000
€,
c) that the
defendant Gonçalo
Amaral had
earned from
the sale of
editions of
the book
in foreign
languages an
amount not
less than
498,750 €,
d) that the
book
had been
sold in
Brazil by
the
defendant
Guerra &
Paz,
Editores,
SA,
e) that the
DVD has
a cover
price of 6
€,
f) that the
defendant Gonçalo
Amaral had
earned by
selling the
DVD an
amount not
less
than 112.500
€
g) that the
DVD had been
edited and
the edited
copies had
been sold by
the
defendant Valentim
de
Carvalho-Filmes,
Audiovisual,
SA,
h) that the
defendant Valentim
de
Carvalho-Filmes,
Audiovisual,
SA had
already put
the
DVD available
in English
version, for
immediate
delivery
through order
on the web, |
|
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| Note 20 |
All those n° refer to the inquiry data basis. |
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Page
40 |
Page
40
i)
that because
of
the defendant
Gonçalo
Amaral's
statements
in the book,
the
documentary and
the
interview
with the CdM,
the
Judicial Police
had ceased
to collect
information
and to
investigate
the
disappearance
of Madeleine
McCann,
j) that
because of
the defendant Gonçalo Amaral's
statements
in the book,
the
documentary and
the
interview
with the CdM the
claimants Kate
and Gerald
McCann find
themselves
completely
destroyed,
from a point
of vie
moral,
social,
ethical,
sentimental,
family, far
beyond the
pain that the
absence of
his daughter
causes them,
k) that in
particular because
of the
defendant Gonçalo Amaral's
statements
in the book,
the documentary
and the
interview
with the CdM the
claimant Kate
McCann finds
herself
immersed in
a serious
and deep
depression, which
has already
made her
declare
publicly I'd
like to be
in a
coma, to
relieve
pain,
l ) that the
defendant Gonçalo Amaral
had been
retired of
the Judicial
Police from
1.6.2008,
m) that the
criminal investigation
had been
reopened by
the
emergence of
new
evidence,
n) that the
attention of
the media
and people
in general
had
decreased
with the
publication of
the
defendant Gonçalo Amaral's
book .
2.2. The
appellants
complete
their
allegations
with the
following
conclusions
:
a. In order
to subsume
the fact in
the
special unlawfulness forecast of
article 484°
of the CC,
enough is
the confirmed
or spread
fact
being susceptible,
given the
circumstances
of the case,
to shake the
prestige or
the good
reputation
that a
person enjoys
in their
social
environment.
b. A book
and other
communicational
substitutes
that don't
essentially
report any
fact,
evidence or
clue
belonging to
the criminal
investigation
they allude
to, since
those were
considered inexistent
by the
shelving
report, are
susceptible
to shake
the prestige
that a
person
enjoys or
the
good reputation
of this
person in
the social
environment.
c. It shakes
also the
honour, the
good name
and
the image of
any innocent
person, and
already
cleared
before
through
the filing
dispatch of
a
criminal investigation
(the
conclusion
of which is
that there
is no
element of
proof nor
evidence
that the
person committed
any crime),
a book, a
documentary and
an
interview, extravagant
in relation
to the
criminal
investigation,
and not
even being
part of
those
communicational
supports the
mention of
that filing
dispatch,
but instead
exactly the
contrary of
what
this dispatch
is postulating. |
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Page
41 |
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Page
41
d. And the
honour, the
good name
and the
image of any
innocent and
cleared
citizen are
even more
shaken by
communication
media that
intend and
are able to
disrespect
and weaken
the
judgement
reached by
State
magistrates,
the sole
holders of
the penal
action, (the
media)
representing
the target
citizen, in
the eyes of
the
remaining
citizens, as
suspect of
the practice
of crime,
through the
use of
concrete
circumstances
advertisers
that
proclaim the
"truth of
the lie",
"unique
revelations"
and
"confidences",
and that
will prove
the crimes
that target
the innocent
citizen, all
that with
the
confessed
intention to
inculcate
third
parties with
the
conviction
that a child
died and
that her
parents are
involved in
the
occultation
of her
cadaver,
simulating
abduction
and cheating
the justice
and the
common
citizen.
e. The right
of free
expression
isn't
absolute and
must respect
the right to
honour and
good name.
When that
expression,
even of a
true fact,
is abusive
and
therefore
unlawful, it
can be
subject to
legal
sanction.
f. The
right-duty
to express
one's
thought must
be exercised
with a clear
civic
criterion,
of respect
for man by
man, and the
information
must be
guided by
rigorous
ethical and
moral rules,
appropriated
to a natural
civic
coexistence.
g. The
abusive and
harmful acts
of arguable
expression
of a retired
public agent
do not fit
in the
constitutional
or
conventional
concept of
freedom of
expression,
in force in
any
democratic
country in
the world.
They
challenge
without
logical,
honest and
valid
support, a
judicial
decision,
untouched
and uttered
in a process
that this
same agent
investigated,
through a
comportment
contrary to
his own
professional
statute, to
the social
peace and to
third-party
personality
rights, acts
exclusively
for
financial
and social
gain and to
create a
popular
phenomenon,
the
repercussion
of which
benefits the
injured
parties and
entails
substantial
and
indelible
damage to
the injured,
even because
such conduct
is
prohibited
not only in
relation to
the absolute
rights of
the
concerned
ones, but
also in view
of the
duties to
which a
retired
public agent
remains
bound.
h. In the
case of the
minutes, in
relation to
the never
compressed
personality
rights of
the
concerned
ones, a
possible
overvaluation
through the
abusive
exercise of
a legal good
and not
absolute
constitutional
interest –
freedom of
expression,
freedom of
information,
freedom of
the press –
is not only
unacceptable,
but repels
the human
being,
because it
is an
illegitimate,
illegal,
abusive and
anti-juridical
exercise of
rights,
because it
constitutes
a degrading
and inhuman
treatment... |
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Page
42 |
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Page 42
... and
because it
con-substantiates
an
unconstitutional
conduct,
violating
international
treaties on
humanitarian,
immoral and
unethical
law.
i.
The rights
relied on by
the
applicants
and already
acknowledged
by three of
the
judgements
uttered
before in
first
instance,
fit in and
are
justified by
the
fundamental
principle of
human
dignity,
until now
characterising
the
politico-sociological
profile of
the
Portuguese
State, with
expression
in the
regulation
of the
tutelage of
the right to
good name
and
reputation,
in the
tutelage of
the
protection
of one's
innocence,
in effective
judicial
protection
and in the
tutelage of
the right to
personal
life and
integrity.
j. Freedom
of
expression,
freedom of
the press
and social
communication,
in a society
of the rule
of law like
the
Portuguese
one, doesn't
contain in
itself an
especially
powerful and
incompressible
guarantee
and its
regime does
not overlap
with the
personality
rights
called in
the minutes
by the
applicants.
They must
therefore
yield to
them in
order to
insure
greater
constitutional
objectives.
k. Freedom
of
expression
and social
communication,
representing
a de facto
power,
forces the
State, in
these
circumstances,
to secure,
namely
through its
courts of
law, a
system of
effective
guarantees
of the
fundamental
rights of
the citizen,
in front of
such a
power, in
compliance
with the
fundamental
principle of
the
democratic
State of
Law, which
is to
respect and
ensure the
effective
implementation
of the
fundamental
rights and
liberties of
the
citizens.
l. In
Portugal, regarding
the
CRP, the
UDHR,
the
European
Convention
on Human
Rights
and the
Convention
on the
Rights of
the Child,
it is not
allowed to
write, to
spread by
all means
and to
comment with
every
possible
nuance, a
thesis that
criminally
charges
innocent
citizens and
never even
judicially
accused of
the crimes
that it
contains. It
is not up to
the State
and the
Courts of
Law to
protect
whoever
behaves this
way, but,
yes, to
protect the
citizens of
such
aggressions.
m. Exactly
because they
are not only
absolutely
innocent,
but also
because they
have the
right to
benefit from
the
principle of
innocence
presumption
of innocence
by acting
and behaving
like any
other
citizen who
has not been
made arguido
in a
criminal
process,
everything
that the
parents of a
missing
child do by
itself,
within
legality,
for getting
their
daughter
back or
representing
her or
knowing what
happened to
her, must be
welcomed by
Portugal,
not like a
voluntary
compression
of the
personality
rights of
these
parents,... |
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Page
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Page 43
… but like
an activity
protected by
national and
international
rights, the
assertion
and
diffusion of
the thesis
proclaimed
urbi et
orbi (21) by
the
respondents
not even
fitting in
the scope of
possible
criticism of
this
conduct.
n. The
judicial
agreement
contrary to
the above
findings,
reflected in
the appealed
judgement,
by promoting
and making
possible in
the specific
case the
re-publication
of the book
or of the
film, and
the
acquittal
for the
respondents
to pay
proportionally
and
adequately
the
indelible
detriments
they have
caused to
the
appellants
by virtue of
their
illegal acts
and
communication
media,
according
to, by the
way, what
was
previously
decided and
stated by
three of the
first
instance's
judgements
uttered in
the minutes,
is :
On one hand,
struck by a
vice of
erroneous
interpretation
and
application
to the case
at stake of
the
provisions
of articles
12° of the
UDHR,
6°, 8° and
10° of the European
Convention
on Human
Rights,
5°, 6°, 9°,
11°, 13°,
14°, 16°,
17° and
34°to 37° of
the
Convention
on the
Rights of
the Child,
adopted by
the
General
Assembly of
the United
Nations
in November
20 1989,
ratified by
Portugal in
September 21
1990, of the
articles 1°,
2°, 8°, 20°,
26°, 32°,
37°, 38° and
272° of the
CRP (Constitution
of the
Portuguese
Republic),
70°, 80°,
81°, 335°,
2°, 483° and
484° of the
CC (Civil
Code),
371°
of the CPP,
74°
of the D.L (law
decree)
498/72 of
December 9,
and the 3°
of EDTEFP
(Disciplinary
Statute of
Public
Function
Agents), dedicated
by D.L.
234/84 of
January 16
and, in the
subsequent
version
still
applicable
to the
minutes, in
law 58/2008
of September
9.
On the other
hand, struck
by the
material
unconstitutionality
by virtue of
the
normative
understanding
which the
appealed
decision
gave to the
legal norms
set out in
articles 1°,
2°, 8°,
16°-1, 2,
18°-2, 20°,
26°-1, 32°-2
and 37°-4 of
the
CRP :
A) when
interpreted
and applied
to the
present
case, in the
sense of
allowing the
publication
of the book
or the film,
and the
acquittal of
the
respondents
to pay
appropriately
and
proportionately
the
indelible
damages that
they caused
to the
appellants
by virtue of
their
action, and
abusive and
illicit
communication
media.
and
B) when
it is more
certain that
this
interpretation
and
application
of said
constitutional
precepts, is
shown
incompatible
with the
inalienable
principles
of the
dignity of
the human
person, of
the general
protection
of
personality
and of the
right to
good name
and
reputation,
and also
under the
supervision
of effective
jurisdiction
and of the
presumption
of
innocence. |
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| Note 21 |
”Orbe” in the original, but this is a dative case : urbi (to the city) and orbi (to the world). |
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Page
44 |
Page 44
Terms in
which, and
in the more
of Law that
Your
Excellencies
surely supply, always in view of the replacement of the
very
righteous
sentence now
revoked by
virtue of
the
TRL's judgement
(22),
Your
Excellencies
must
fully
adjudicate
the recourse
of Ordinary
Review filed
by the
appellants ;
More, that
decision
should, in
consequence,
be fully
replaced by
another
that,
applying the
Law to
Facts, at
least
1)
Declares the
unlawfulness
of the facts
attributable
to the
respondents
and their
guilt in the
performance
of the same;
2)
Recognizes
that the
respondent
companies
constituted
vehicles of
the
wrongdoing
committed by
the
respondent
Gonçalo
Amaral, for
which reason
they are
liable for
the measures
that under
article 70-2
of the CC must
be ordered
in the case,
according to
criteria of
adequacy and
proportionality,
precisely to
mitigate the
effects of
this tort ;
3)
Recognizes
that such
measures
must consist
in the
prohibition
of sale and
order of
collecting
the books,
addressed to
Gonçalo
Amaral and
Guerra &
Paz,
Editores SA
for delivery
to the
appellants;
4) Decrees
prohibiting
the
execution of
new editions
of the book
or DVD. As
well as the
transfer of
publishing
rights and
author
rights. Such
injunction
should be
directed
against the
respondents
Gonçalo
Amaral, Guerra
& Paz,
Editores SA and Valentim de Carvalho-Filmes
e
Audiovisuais
SA
that is,
this last
one,
regarding
the first,
the holder
of the
audiovisual
adaptation
rights of
the book;
5) In
accordance
with the
provisions
of article
8290-A1 of
the CC,
establishes
an
appropriate
compulsory
sanction for
benefits
actually not
fungible,
considering
proportional
an amount
never less
than €
50.000
(fifty
thousand
euros) for
each
infringement
of this
order
(article
829-A2 of
the CC);
6)
Compensates
for the
proven
damage that
have been
verified in
the legal
spheres of
the
appellants
and that are
the direct
and
necessary
cause of the
unlawful,
guilty and
abusive
conduct of
the
respondent
Gonçalo
Amaral,
damage
which, once
balanced the
degree of
guilt of the
party at
fault, the
seriousness
of the
offense, the
temporary
and social
circumstances
in which the
facts were
committed,
and, since
it is
particularly
relevant in
this
specific
case, the
value of the
benefits
accrued by
the party
with the
unlawful
act, shall
not be
compensated
with a lower
amount of
compensation
filed in the
proceedings
by each of
the
appellants
and
previously
stipulated
for them, in
that exact
measure, by
the judgment
now revoked
by the TRL. |
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Page
45 |
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Page 45
2.3. The
respondent
Guerra &
Paz Editores
SA,
counter-argued,
concluding
in the
following
terms :
A. At stake
in the
present
minutes is
the book
Maddie, the
Truth of the
Lie
written by
the
respondent
GA and
published by
the
respondent Guerra
& Paz,
Editores SA.
The
publishing
contract was
celebrated
on
10/3/2008,
the book
being
published on
the 24/7 of
the same
year.
B.
Circulate on
the
Internet,
without the
authorization
of the
respondent,
an English
version and
a Portuguese
version of
the book at
issue in the
present
case, and a
version of
the
documentary,
with English
subtitles.
As well as a
full copy of
the criminal
process.
C. The
action that
originated
these
proceedings
and of which
the
respondent
is a party
was also
brought
against
TVI-Televisão
Independente
SA,
which was
acquitted by
the first
instance
judgment,
that has
already
become
res judicata
(final
judgement)
on this
point.
D. In other
words, the
appellants
accepted the
acquittal in
the first
instance of
the
defendant TVI-Televisão Independente
SA which
had
broadcast
twice a
documentary
based on
the book
written by
the
respondent
Gonçalo
Amaral and
published by
the now
respondent Guerra
& Paz
Editores SA and,
consequently,
they
accepted
that such
defendant
could
broadcast
the
documentary
and divulge
in some way
the thesis
of the book.
E. With the
exception of
paragraph a)
of the
request
formulated
in the
action, all
other
paragraphs
are
addressed to
all
defendants
of the
action,
including TVI-Televisão Independente
SA,
therefore
the
appellants
do not care
if the
defendant TVI-Televisão Independente
SA practices
the facts
that they
intended to
beware of
with the
present
action, but
concerning
the
respondent
and others
they do.
F. With the
acceptance
of the
acquittal of
the
defendant TVI-Televisão Independente
SA,
the present
appeal that
seeks to sue
the
respondents
Gonçalo
Amaral, Guerra
& Paz
Editores SA and Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA, con-substantiates the abuse of rights foreseen in article
334° of the
CC and
implies the
groundlessness
of the
present
appeal.
G. We live
in a
democratic
State of
Law, based
on pluralism
of
expression,
which
guarantees
freedom of
thought and
free
disclosure,
besides the
fact that we
must all
contribute
to the
enrichment
of culture
through the
publication
of books and
documentaries.
H. As it is
undisputed
that the
appellants
have
achieved
notoriety
and fame in
Portugal and
around the
world, it is
not possible
that they
grant
interviews
to the
media, even
in the
intimacy of
their home,
when it is
favourable,
and then
forbid the
publication
of books... |
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Page
46 |
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Page 46
… or
comments,
even on
publicly
known facts,
when they
feel those
might be
unfavourable.
I. Thus the
sphere of
private life
of the
claimants,
as much
through
their
notoriety as
through
their
option, can
only be
considered
reduced,
especially
according to
the terms
and effects
of the
contents of
Article
80°-2 of the
CC.
J.
The
appellants
maintain to
the same
extent the
dignity of
the human
person, the
good name
and
reputation
and the
presumption
of innocence
which they
had before
and after
the
publication
of the book
in question.
K. There is
a chronology
and
succession
of public
and
notorious
facts that
cannot be
omitted,
that are
reflected in
the
factuality
given as
proven in
the
enumeration
of the
appealed
judgement
and also in
the filing
dispatch
included
therein.
L. Since the
disappearance
of the
child, up to
this date,
the
appellants
have
publicised
their
opinion on
the facts,
though these
are still
unknown
today.
M. As well
as the
appellants,
every
citizen has
the right to
have an
opinion on
the facts
and to
publicize
it.
N. The
rights to
freedom of
expression
and
information
and the
right to
freedom of
the press
and social
communication
media are
enshrined in
articles 37°
and 38° of
the CRP.
O. And
further, the
right to
freedom of
expression
is enshrined
in Articles
19° of the UDHR and
10° of the
European
Convention
on Human
Rights.
P. Contrary
to the claim
of the
appellants,
various
decisions of
the ECHR,
that can be
consulted,
have come to
condemn the
Portuguese
Courts of
Law for
violating
the right to
freedom of
expression
and freedom
of the press
by
condemning
journalists
and other
citizens for
defamation.
Q.
The ECHR
considers
that the
right to
freedom of
expression
is one of
the
essential
foundations
of a
democratic
society.
R. The STJ in
Portugal has
also
delivered
judgments
that value
the right to
freedom of
expression,
to the
detriment of
other
rights.
S. In view
of the
exposed
elements,
there can be
no doubt
that the
right to
freedom of
expression
and the
right to
freedom of
the press
are
fundamental
in a
democratic
State of
Law. |
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Page
47 |
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Page 47
T. As
stated, it
was the
appellants
themselves
who freely
and
conscientiously
chose to
make public
facts that
besides
cannot be
considered
from private
and family
life.
U. The
request for
protective
injunctions
of the
appellants'
personality
rights
petitioned
are not
suitable for
the purpose
at stake,
besides of
being
illegal.
V. And could
only be
applied
after
detailed
analysis to
verify, case
by case, if
they are
legal,
appropriate
and
proportionate
to the
specific
case and who
are the
recipients
thereof,
which is
forbidden to
that Court.
W- The
present
minutes are
composed of
two
different
actions with
different
values. The
respondent
G&P is part
of an action
with a value
of €
30,000,01,
whereby this
is the value
of the costs
paid by the
party whose
claim is
rejected.
X. The
uttered
judgment
must be
maintained
in its
precise
terms, at
risk of
violating,
namely, the
Articles
13°, 20°,
37°, 38° and
42° of the
CRP
Articles 5°,
158°and 615°
of the CFC
(sic,
likely CPC,
Codigo de
Processo
Civil)
Articles
334° and
335° of the
CC
Article 19°
of the UDHR
Article 10°
of the
European
Convention
on Human
Rights
2.4. It can
be verified
that the
divergence
found in the
decisions of
the
instances
consists
essentially
in the
following :
- the
first
instance
found that
the
defendant
Gonçalo
Amaral, for
having been
responsible
for the
criminal
investigation
as a member
of the PJ,
although,
meanwhile,
he retired,
couldn't
enjoy full
and complete
freedom of
expression,
since the
functions he
was in
charge of
imposed on
him, in
particular,
the reserve
duty,
wherefore
that freedom
having to
yield to
this duty,
his conduct
was unlawful
in virtue of
the art.
484°of the
CC.
- the
second
instance
took the
view that
this
argumentation
could not be
upheld,
inasmuch "it
would be
hardly
understandable
that a civil
servant,
even more a
retired one,
should carry
on his
silence and
reserve
duties, thus
limiting the
exercise of
his right to
opinion as
to the
interpretation
of facts
already made
public by
the judicial
authority
and widely
discussed,
actually
largely at
the
instigation
of the
protagonists
themselves,
in national
and
international
media",
imposing
himself to
consider... |
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48 |
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Page 48
... the
publication
of the book
in question
as revealing
the
legitimate
exercise of
right to
opinion.
The
appelants,
in the
conclusion
of their
claim for
review,
despite
alluding to
their claim
to have the
sentence of
the first
instance
reinstated,
did not make
any express
reference to
the question
of the
alleged
reserve duty
of the
defendant
Gonçalo
Amaral, to
which,
according
the same
judgement,
freedom of
speech
should give
in, which
constitutes
the
cornerstone
of the
entire
construction
leading to
the
conclusion
that the
conduct of
that
defendant
was illicit,
by virtue of
art.44° of
the CC.
That thesis,
as we have
already
seen, was
not welcomed
by the TRL
(Appeal
Court). So,
what the
appelants
claim is
that, in
order to
subsume the
fact to the
special
provision of
illegality
of the
aforementioned
art. 484°,
enough is
the affirmed
or disclosed
fact to be
capable,
taking into
account the
circumstances
of the case,
of
undermining
the prestige
of someone
or the good
reputation
enjoyed by
someone in
the social
environment.
So much
more, they
add, when
innocent and
cleared
citizens are
concerned
(via the
filing
dispatch of
the criminal
proceedings),
who are
anyhow
entitled to
benefit of
the
principle of
innocence
presumption.
Furthermore,
they claim
that free
speech, in a
society of
primacy of
law, such as
the
Portuguese
one, does
not contain
in itself
any
guarantee
particularly
powerful and
incompressible,
its regime
not
overlapping
with the
personality
rights
called by
the
appellants
in the
minutes. It
should
therefore
yield to
them, with a
view to
ensuring
greater
constitutional
objectives.
Let's see.
The central
question
that must be
considered
in this
present
appeal is
how to
resolve the
conflict
between the
rights of
claimants
Kate and
Gerald
McCann, now
appellants,
to good name
and
reputation,
and the
rights of
the
defendants
Gonçalo
Amaral, Guerra
& Paz
Editores SA and Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA, now respondents, to freedom of expression and
information,
and to
freedom of
the press
and media.
That
question
implies the
formulation
of the
following
question:
must the
conduct of
the
respondents
be regarded
as unlawful,
for
besmirching
the honour
of the
appellants ? |
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Page 49
As the
outcome of
what has
been exposed
above,
freedom of
expression
and honor
constitute
two
fundamental
rights that,
given its
relevance,
deserved a
constitutional
consecration.
A broad
conception
of honour is
approved,
encompassing
the various
meanings
which are
legally
recognized
to this
concept :
the
Constitution
safeguards
the "good
name and
reputation"
(art.
26°-1), the
CC
welcomes the
"moral
personality"
(art.
70°-1),
"honor or
reputation
or simple
decorum"
(art. 79°-3)
and the
"credit or
good name"
(art. 484°)
; the
CPP
protects
"honour or
consideration"
(art. 180°
sq).
Thereby, the
art. 26°-1
of the
CRP
welcomes the
right to
good name
and
reputation,
which,
according to
Gomes
Canotilho
and Vital
Moreira, in
the
CRP
annotated ,
Vol. 1, 4th
ed., p. 466,
consists
essentially
in the right
not to be
offended or
harmed in
one's
honour,
dignity or
social
consideration
by
imputation
made by
others, as
well as the
right to
defend
oneself of
this offense
and to
obtain a
relevant
reparation.
For its
part, the
article 37°
of the
CRP
recognizes
two sets of
rights - the
right to
expression
of thought
and the
right to
information.
The right to
expression
is, straight
away,
freedom of
expression,
that is to
say the
right not to
be prevented
from
expressing
oneself and
to spread
ideas and
opinions.
According to
those
distinguished
constitutionalists,
op.cit. p.
572, the
regime of
the right to
expression
of thought
and the
right to
information
is, in the
juridical-constitutional
perspective,
essentially
identical.
The
normative
scope of
freedom of
expression
should be
as broad as
possible to
include
opinions,
ideas,
points of
view,
convictions,
criticism,
stances,
value
judgements
on any
matter or
issue
(political,
economic,
gastronomic,
astrological
questions),
and whatever
are the
purposes
(influence
of public
opinion,
commercial
objectives)
and the
criteria of
appraisal
(truth,
justice,
beauty,
rational,
emotional,
cognitive,
etc.).
Thus, while
the
aforementioned
art. 37°
regulates
the freedoms
and rights
of
expression
and
information
in general,
the art. 38°
deals with
these rights
when
exercised
through
the press
and other
mass media.
In this way,
freedom of
the press is
only a
qualification
of freedom
of
expression
and
information
intended for
the public.
That is why
the first
shares the
entire
constitutional
regime of
the latter.
The honour
and freedom
of
expression
are also
enshrined in
the
Universal
Declaration
of Human
Rights (UDHR
- art. 12°
and 19°, the
art. 29°-2
establishing
the
criterion
of... |
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50 |
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Page 50
...
harmonization
of the
various
rights) and
in the
European
Convention
on Human
Rights
(art.8° and
10°).
Although
the STJ has
already
understood,
in
particular
in the
judgements
of 30/06/11
and of
1914/16 (in
www.dgsi.pt),
that the
ECHR does
not protect,
in general,
the right to
honor,
referring it
only as
possible
integral
part of the
restrictions
to freedom
of
expression
mentioned in
the quoted
art. 10°-2,
the
jurisprudence
of the ECHR
considers
that from
respect for
privacy
enshrined in
article 8°
of the ECHR
emerges a
right to
protection
of
reputation
(cf. the
following
cases :
Petrina vs
Romania
(78060/01),
Abeberry vs
France
(58729/00)
and Leempoel
SA. ED Cine
Revuc vs
Belgium
(64722/01),
cited in the
above
mentioned
Judgement
of the
Lisbon Appeal
Court of
14/02/12,
and, more
recently,
the cases
Medipress-Sociedade
Jornalística,Ldt.
Vs Portugal
(55442/12)
and Tavares
de Almeida
Fernandes e
Almeida
Fernandes vs
Portugal
(31566/13).
In these
last two
cases, the
decisions of
which date,
respectively
of 30/08/16
and
17/01/17, it
was
considered
that
whenever the
Court has to
rule on a
conflict
between the
two
mentioned
rights,
which are
also
protected by
the
Convention,
it must take
stock of the
interests at
stake, from
the point of
view of art.
8° as well
as from the
point of
view of art.
10°, since
those two
rights
deserve, a
priori, an
equal
respect.
It should be
noted that,
in the civil
and legal
sphere, the
art. 335° of
the
CC
states that
the concrete
resolution
of a
conflict of
rights with
identical
value
requires its
harmonization,
seeking to
optimize
them so that
each one can
produce its
best
effects.
However,
since there
is a
collision of
fundamental
rights, the
conflict can
not be
solved by
the
principle of
equal
treatment.
It is
necessary to
weigh the
interests
concerned in
order to
determine
which needs
more
protection
in the case
at stake.
In the
present case
we are,
clearly,
facing
rights
belonging to
the category
of personal
rights
freedoms and
guarantees,
being then
applicable
their
specific
regime,
namely the
one provided
in art. 18°
of the
CRP,
more
precisely
what is
expected in
the 2nd
paragraph,
according to
which:
The law may
only
restrict
rights,
freedoms and
guarantees
in cases
expressly
provided for
in the
Constitution.
The
restrictions
being
limited to
what is
necessary to
safeguard
other
constitutionally
protected
rights or
interests. |
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Page 51
The
mentioned
2nd
paragraph
thus gave
clear
constitutional
haven to the
principle of
proportionality,
also called
principle of
prohibition
of excess,
which,
according to
Gomes
Canotilho
and Vital
Moreira. op.
cit. p.
392-3, is
divided into
three
sub-principles:
the
principle of
adequacy
(the
restrictive
measures of
rights,
freedoms and
guarantees
should prove
to be an
appropriate
means for
the pursuit
of the
contemplated
purposes,
safeguarding
other
constitutionally
protected
rights or
assets), the
principle of
liability
(such
restrictive
measures
must be
required in
order to
achieve the
objectives
in view of
the fact
that the
legislator
does not
have other
less
restrictive
means to
achieve the
same
objective),
the
principle of
fairness or
proportionality
in the
strict sense
(disproportionate,
excessive
measures
will not be
adopted to
achieve the
intended
objectives).
Likewise one
can see the
Ruling n°
634/93 of
the
Constitutional
Court of
4/11/93.
In the light
of the
Constitution,
freedom of
expression
and honour
have the
same legal
value,
turning
impossible
any
principle of
abstract
hierarchy
among them
(Gomes
Canotilho,
Constitutional
Law and
Constitutional
Theory,
Coimbra,
2003, pp.
1225 and
1237).
It is
therefore
appropriate
to use the
principle of
practical
concordance
or
harmonization
that
obstructs a
solution
sacrificing
a right in
relation to
the other
and forces
to the
existence of
constraints
and mutual
conditioning,
with the aim
of reaching
a solution
of harmony
or practical
agreement
between both
(see article
18°-2,3).
However, as
it is
impossible
to reach a
solution of
harmonization
in order to
obtain a
fair
solution to
the
collision of
rights,
positive
aspects will
have to be
counterbalanced,
followed by
a balancing
methodology
adapted to
the
specificity
of the case
(norm of
decision in
situation,
in the words
of Gomes
Canotilho,
op. cit. p.
1237).
This is why
the conflict
resolution
cannot fail
to take on a
concrete
nature,
exhausting
itself in
each case it
resolves.
In fact,
settling the
conflict in
the abstract
would imply
a
prioritized
hierarchy of
rights
constitutionally
inadmissible.
As it is
known in
modern
democratic
States of
Law, like
Portugal,
the conflict
between
freedom of
expression
and honour
is a classic
issue. |
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Page 52
Particularly
when those
involved are
public
figures and
a matter of
public
interest is
involved.
The concrete
resolution
of the
conflict
between
freedom of
expression
and honour
of public
figures, in
the European
legal
context,
where we are
inserted,
takes place
under the
influence of
the European
jurisprudential
paradigm of
human
rights.
In this way,
the ECHR
interpreting
and applying
the
European
Convention
on Human
Rights
has defended
and
developed a
doctrine of
enhanced
protection
of freedom
of
expression,
in
particular
when the
person
targeted by
imputation
of facts and
formulation
of
dishonourable
value
judgments is
a public
figure, the
issue being
a question
of political
or public
interest in
general.
As Francisco
Teixeira da
Mota points
out in "The
European
Court
of Human
Rights and
Freedom of
Expression -
the
Portuguese
Cases",
p. 89 : Though
the European
Convention
on Human
Rights
doesn't add
many rights
to those
already
contained in
our
Portuguese
Constitution,
its
ratification
by Portugal
is a
significant
milestone
for a number
of reasons,
among which
stands out
the fact
that
Portugal
joined a
juridico-cultural
community
which values
and upholds
human rights
and the fact
that its
citizens
have now
direct
access to
international
(European)
mechanisms
of
protection
of those
rights.
It has been
understood,
between us,
both at the
doctrinal
and
jurisprudential
level, that
the ECHR
occupies
an
infra-constitutional
position,
its
application
in internal
order being
therefore
dependent on
conformity
to the
precepts of
our
fundamental
law and
that has a
supra-legal
value, so
that the
internal
laws,
posterior to
a internally
received
treaty, that
contravene
the
provisions
of their
orders will
not, to that
extent, be
able to be
applied by
the courts
(Rui Moura
Ramos, "The
European
Convention
on Human
Rights - Its
Position on
the
Portuguese
Legal
System" and
"Implementation
of the
European
Convention
on Human
Rights -
Some
Problems",
in
Documentation
and
Comparative
Law –
BMJ, 1980
and 1983
respectively).
The national
judges are,
in this way,
linked to
the
European
Convention
on Human
Rights,
since,
having been
ratified and
published,
it
constitutes
a national
law which as
such must be
interpreted
and applied,
in
constitutional
terms, over
domestic law
(art. 8° of
the
CRP).
Moreover,
under
article
16°-2 of the
CRP,
the
constitutional
and legal
precepts
related to
the
fundamental
rights must
be
interpreted
and
integrated
in
accordance
with the UDHR. |
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53 |
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Page 53
As António
Henriques
Gaspar,
current
Judge-Counselor
President of
the STJ refers
in
The
Influence of
the European
Convention
of Human
Rights in
the
Interjurisdictional
Dialogue,
the National
Perspective
or the Other
Side of the
Mirror,
intervention
in the
Colloquium
on the
occasion of
the
Commemoration
of the 300th
anniversary
of the
validity of
the
Convention
in Portugal
- STJ,
10/11/08,
published in
Revista
Julgar,
n° 07, p.
39,
In spite of
the limited
terms of
direct
linking, the
decisions of
the ECHR,
when
interpreting
the
provisions
of the
Convention,
must have a
'specific
authority'
which is
imposed on
all States
by the
so-called "autorité
de la chose
interprétée"
(res
interpretata
authority) :
the ECHR's
function is
"to clarify,
safeguard
and develop"
the
Convention's
norms,
helping to
ensure that
States
respect the
commitments
assumed
under the
Convention
entailment.
In such a
way that the
interpretation
by the ECHR
of
conventional
norms must
be
considered
as
integrating
the
Convention
itself. The
principle of
entailment
can be found
in the
wording of
articles 1°
and 19°
which
preside over
the entire
European
Convention
of Human
Rights.
Thus,
national
judges, when
interpreting
and applying
the
Convention,
as
first-line
conventional
judges, must
take into
account
the
methodological
references
and
interpretations
and the
jurisprudence
of the ECHR
as the
proper
instrument
of
conventional
regulation.
It has to be
reckoned
that,
according to
the opinion
of the
national
judges
assembled
for
reflection
and
consultation
(cf. Avis
n°9, 2006,
of the
Conseil
Consultatif
des juges
européens,
on the
function of
national
judges in
the
effective
application
of
international
and European
law), the
case-law of
the ECHR
must be for
all judges a
reference in
the process
of
elaborating
a body of
European
law.
On the other
hand, on
28/1/03, the
Parliamentary
Assembly of
the Council
of Europe(EC)
through the
Recommendation
1589 (2003)
reiterated
to the
Committee of
Ministers,
among other
measures,
the
necessity to
turn public
the data
related to
the
monitoring
of the
exercise of
freedom of
expression
in member
and
candidate
countries
and the
necessity
for member
states
to
incorporate
the ECHR
jurisprudence
in the field
of freedom
of
expression
in their
internal
legislation
and to
ensure the
appropriate
training of
the judges.
Nevertheless,
as it is
obvious,
taking into
consideration
the case-law
of the ECHR
is not
acceptance
by
imposition,
but rather
an
intellectual
imperative,
that implies
analysis and
balancing,
from which
the outcome
may be
acceptance
but also
divergence. |
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Page 54
In fact, the
judges judge
only
according to
the
Constitution
and the law,
not having
entailment
of any kind,
except the
duty of
compliance
by lower
courts of
the
decisions
proclaimed,
on appeal,
by higher
courts.
Paraphrasing
the current
Judge
Counsellor
President of
the STJ,
op. cit.
p.44, The
dialogue and
the
interaction
between the
European
instance and
the national
instances
has to
assume, on
the part of
those, a
position of
great
openness and
the
assumption
of a culture
of judicial
cosmopolitism.
Which,
nevertheless,
does not
fail to
alert to
situations
in which the
national
margin of
discretion
is
completely
removed by
transforming
in fact, the
ECHR in a
fourth
instance,
contrary to
the
conventional
model of
control (op.
cit. p. 42).
However, as
it is said
here (op.
cit. p. 50)
the
international
bodies, for
their part,
must also
bear in mind
the warning
of Judge
Jackson of
the
Supreme
Court :
We are
not final
because we
are
infallible,
but we are
infallible
only because
we are final
(Note : in
English in
the text).
Consequently,
he concludes
(op. cit. p.
50), the
interjurisdictional
dialogue
must be
undertaken
by national
judges with
intellectual
rigor,
without the
radicalisms
proper to
any
methodological
nationalism.
Anyhow,
there are
matters that
are more
permeable to
jurisprudential
reading of
the ECHR,
therefore,
in these
cases, it is
more
appropriate
to take them
as
reference.
This is the
case with
the case-law
on freedom
of
expression,
built on the
interpretation
and
application
of the art.
10° of the
European
Convention
on Human
Rights,
which offers
a host of
extremely
useful
criteria for
the national
courts,
already
integrating
a
European
consensus,
so that
internal
decisions
can not fail
to take this
case-law
into
account.
Such a
consensus
reveals a
doctrine of
enhanced
protection
of freedom
of
expression,
in the terms
referred to
above, which
is
considered
as super
freedom
and as one
of the most
precious
rights of
man.
However our
case law on
freedom of
expression,
in its
confrontation
with the
right to
honour,
tends in
general to
uphold the
primacy of
the latter
over the
first (cf.
inter alia,
the
judgements
of the STJ of
26/4/94,
14/2/02,
7/3/02 and
8/3/07 in
www.dgsi.pt).
We
acknowledge,
indeed,
that, while
on the ECHR
side the
solution to
the issues
related to
interference
in freedom
of
expression
is found by
taking into
account its
exceptional
nature and
the central
importance
of that
freedom in a
democratic
society, ... |
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55 |
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Page 55
…
On the
national
instances'
side there
is a clear
tendency to
secondarily
favour
freedom of
expression
and to
overestimate
the right to
honour.
This has
caused
Portugal to
be condemned
by the ECHR
for
violation of
art. 10° of
the European
Convention
on Human
Rights (cf.
the cases
Lopes Gomes
da Silva vs
Portugal
(2000),
Urbino
Rodrigues vs
Portugal
(2005),
Roseiro
Bento vs
Portugal
(2005).
Almeida
Azevedo vs
Portugal
(2007),
Colaço
Mestre vs
Portugal
(2007),
Leonel
Azevedo vs
Portugal
(2008),
Medipress
Sociedade
Jornalistica.
Lda. Vs
Portugal
(2016) and
Tavares de
Almeida
Fernandes
and Almeida
Fernandes vs
Portugal
(2017)).
We observe,
in this
respect,
that in the
cases in
which the
Portuguese
State would
be condemned
by the ECHR
for
violation of
Convention
norms, a
request of
review can
be lodged to
the Court
that issued
the decision
to
re-examine
(cf. Art.
449°-1g of
the CPP introduced
by Law n°
48/ 2007, of
29/8, and
art. 771°-f
of the CPC,
introduced
by D.L
n°303/2007
of 24/8 -
art. 696°-f
of the NCPC-)
Thereby
followed the
injunctions
of the
Recommendation
R (2000) of
January 19
2000 from
the
Committee of
Ministers of
the Council
of Europe,
which
constitutes
a soft law
instrument
that called
on States to
provide for
the
possibility
of reopening
internal
proceedings
when the
re-examination
is the
necessary
means to
repair the
entitlement
affected in
the cases
where
violation is
stated by
the ECHR.
This
reflects the
growing
importance
of the
case-law of
that Court.
However, it
is clear
that
national
case-law has
been
operating at
a turning
point,
having for
basis and
groundwork
the
pertinence,
the dignity
and the
dimension of
freedom of
expression,
as stated in
the STJ's
ruling of
7/3/01 (cf.
also the STJ's
rulings of
7/2/08,
10/7/08,
30/6/11, 28
/6/12,
8/5/13,
21/10/14 and
19/4/16,
where the
influence of
the
jurisprudential
paradigm of
the ECHR is
evident).
The first
instance
judgement
accounts for
all this.
This is why
it was
reproduced
in part in
this
judgement
(cf. the
first 39
pages). We
assume that
there was a
correct
invocation
of the
legislation
and of the
case-law
relevant for
the purposes
of deciding
on the
central
question
referred to
above and
still for
reasons of
procedural
economy, so
as not to
repeat legal
and
jurisprudential
citations,
which, in
this way, we
consider
here as
reproduced.
However,
that
sentence
ended up
resolving
the issue by
resorting to
the
presumption
of innocence
of the
claimants
Kate and
Gerald
McCann and
to the
reserve duty
of the
defendant
Gonçalo
Amaral,... |
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Page 56
... and we
disagree
with the
decision so
decided on
the basis of
the
arguments
which we
shall adduce
next.
Before,
however, the
relevant
facts to be
taken into
account in
deciding the
question
referred to
above shall
be listed
below :
5. The
claimant
Madeleine
McCann has
been missing
since
3/5/2007,
and the
office of
the Republic
Prosecutor
for the
Portimão
district has
opened a
criminal
investigation
6. The dogs
of the
British
police
'Eddie and
Keela' have
detected
human blood
and body
odours in
the Ocean
Club
apartment
5-A.
7. The dogs
Eddie and
Keela, from
the British
police, have
detected
human blood
and cadaver
scent in the
vehicle
rented by
the
applicants Kate
McCann and
Gerald
McCann after
Madeleine's
disappearance.
8. The
claimants
Kate McCann
and Gerald
McCann were
constituted
arguidos
(formal
suspects) in
the criminal
investigation.
9. In folios
2587-2602 of
the criminal
investigation,
the
10/9/2007,
Chief
Inspector
Tavares de
Almeida
wrote a
report and
in
particular
the
following : Given
what we
could
establish,
the facts
point
towards the
death of
Madeleine
McCann
during the
evening of 3
May 2007, in
the
apartment 5A
of Praia da
Luz Ocean
Club resort,
occupied by
the McCann
couple and
their three
children (p.
2599) (...)
Taking into
account all
that was
presented in
the minutes,
it results
that :
A) The minor
Madeleine
McCann died
in apartment
5A of the
Ocean Club
in Praia da
Luz in the
evening of
May 3, 2007
;
B) A
simulation
of abduction
took place ;
C) In order
to make
possible the
death of the
minor before
22h, a story
about
checking on
the McCann
children, as
they slept,
was invented
;
D) Kate and
Gerald
McCann are
involved in
the
concealment
of the body
of their
daughter Madeleine
McCann ;
E) On this
date it
seems there
is no solid
evidence
that the
death of the
minor was
not due to a
tragic
accident;
F) Given
what has
been
confirmed so
far,
everything
indicates
that the
McCann
couple, as
self-defence,
does not
want to
deliver
immediately
and
voluntarily
the body,
existing a
high
probability... |
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Page 57
...
that the
same was
removed from
the place
where it was
originally
disposed of.
This
situation is
likely to
raise
questions
about the
circumstances
in which
occurred the
death of the
minor.
Thus we
suggest that
autos be
delivered to
the
prosecutor
of Lagos
aiming :
G) A
possible new
interrogation
of assisted
witnesses Kate
McCann and
Gerald
McCann ;
H) Evaluate
the adequate
measure of
constraint
to be
applied in
the case
(page 2601).
10. In folio
2680 of the
criminal
investigation
, on
10/9/2007,
the
prosecutor
in charge of
the
investigation
issued an
order which
namely says
this:
During the
investigation
which goes
on regarding
the
disappearance
of Madeleine
McCann, the
proceedings
being
therefore
open either
to confirm
or to deny
that the
occurrence
of the
disappearance
is related
to the
crimes of
kidnapping,
homicide,
exposure or
abandonment
and
concealment
of corpse,
and in
accordance
with the
established
plan, the
need was
felt to
gather
information
on the
actual time
of the
disappearance,
verify the
location of
each
stakeholder
– from the
McCann
couple to
the group of
friends with
whom they
were on
holiday in
tourist
apartments
in the Praia
da Luz Ocean
Club, i.e
Michelle
Jane Tanner,
Russell
James
O'Brien,
David
Matthew
Oldfield,
Rachael Jean
Mampilly
David
Anthony
Payne, Fiona
Elaine Payne
and Diana
Webster –
when the
events
occurred and
in the
moments that
followed,
and
determine
the
movements of
the assisted
witnesses,
Gerald
McCann and
Kate Healy,
during their
stay
in Portugal,
while
also
establishing
connections
between all
stakeholders
and third
parties.
In this
sense, and
because the
following
investigation
needed is
essential
for the
discovery of
truth ,
especially
the analysis
of
information
on telephone
exchanges
between the
McCann
couple and
their
friends, and
other phone
numbers,
which have
shown to be
related to
events of
May 3rd 2007
evening, the
autos are
delivered to
the Judge of
Criminal
Instruction
(JCI).
11. In folio
3170 of the
criminal
investigation,
on
3/12/2007,
the JCI of
Portimão
issued a
decree in
which he
stated
particularly
this:
Since the
investigation,
in these
autos,
concerns the
practice of
kidnapping,
homicide,
exposure or
abandonment
and
concealment
of corpse,
the first
three crimes
being
punished
with a
sentence of
more than 3
years
imprisonment,
and since it
seems
convenient
to identify
the person
who...
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58 |
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Page 58
… exhibited
suspicious
behaviour in
the vicinity
of the place
where the
child
disappeared
from, as
mentioned in
statements
of folios
3150, 3154
and sq, the
data
requested by
the public
prosecutor
being thus
very
important to
discover the
truth, I
order (...)
the
soliciting
telecommunications
operator
Portugal
Telecom.”.
12.
The (then) defendant
Gonçalo
Amaral was,
until
2/10/2007,
the PJ
inspector in
charge of
coordinating
the
investigation
into the
disappearance
of the
applicant
Madeleine McCann.
13. The
defendant Gonçalo
Amaral is
retired from
the PJ since
1/7/2008 (n°
19).
14. On
21/7/2008,
the Republic
General
Prosecution
office
informed
through a
"note for
social
communication"
that the
investigation
mentioned in
5. would be
shelved and
could be
reopened at
the
instigation
of the
Public
prosecutor
or at the
request of
any
interested
party, if
new evidence
arose,
raising
serious,
relevant and
consistent
investigation
(n° 20).
15. The
archiving
dispatch
concerning
the criminal
investigation,
issued le
21/7/2008 by
the
prosecutor,
says in
particular
this (...)
20. The
(then)
defendant
Gonçalo
Amaral is
the author
of the book Maddie
- A Verdade
da Mentira,
published by
the (then)
defendant Guerra
& Paz
Editores SA.
23. Is part
of Maddie
– A Verdade
da Mentira particularly
the
following
prologue:
(…)
24. The
defendant
Gonçalo
Amaral
concluded
his book Maddie
- A Verdade
da Mentira as
follows :
For me and
for the
inspectors
who worked
on this case
until
October
2007, the
investigation
findings
include
1) The minor
Madeleine
McCann died
in the
apartment 5A
of Vila da
Luz’s Ocean
Club, on the
evening of 3
May 2007;
2) There has
been a
simulation
of
kidnapping ;
3) Kate
Healy and
Gerald
McCann are
suspected of
involvement
in the
concealment
of their
daughter's
body;
4) Death
could have
occurred as
a result of
a tragic
accident.
5) There are
clues of
neglect in
the
protection
and safety
of children
(pp.220-221). |
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Page 59
25. The book
Maddie -
A Verdade da
Mentira
was launched
on
24/07/2008
in El
Corte Inglês
Shopping
Centre
in Lisbon.
40. The
(then)
defendant Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA produced
the
documentary
Maddie ,
The Truth of
the Lie,
directed by
Carlos
Coelho da
Silva, which
is an
adaptation
of the book
written by
the (then)
defendant Gonçalo
Amaral. This
documentary,
in DVD
format, is
appended to
the files.
41.At the
beginning of
the
documentary,
the
defendant
Gonçalo
Amaral
states the
following:
My name is
Gonçalo
Amaral and I
have been an
inspector
for the
Judiciary
Police for
27 years. I
co-ordinated
the
investigation
into the
disappearance
of Madeleine
McCann on
the 3rd of
May 2007.
During the
next 50
minutes I
will prove
that the
child was
not abducted
and that she
died in the
holiday
apartment in
Praia da
Luz.
Discover all
the truth
about what
happened
that day. A
death that
many want to
cover up.
42. At the
end of the
documentary,
the
defendant
Gonçalo
Amaral
states the
following :
What I know
tells me
that
Madeleine
McCann died
in apartment
5A on the
3rd of May
2007. I am
certain that
this truth
one day will
be
ascertained.
The
investigation
was brutally
interrupted
and there
was a hasty
political
archival.
Some are
hiding the
truth but,
sooner or
later, the
varnish will
crack and
revelations
will
surface.
Only then
will there
be justice
for
Madeleine
McCann.
43. The
defendant Valentim
de
Carvalho-Filmes
e
Audiovisuais
SA, concludes
the
documentary
with this
statement :
The mystery
remains, the
former
inspector
believes
that one day
the truth
will be
known. For
now, we are
aware only
that on the
3rd May of
2007,
Madeleine
McCann
disappeared
in Praia da
Luz. She was
3 years old
and she was
a happy
child.
48. The
defendant
Gonçalo
Amaral gave
to the
newspaper CdM an
interview,
conducted by
the
journalists
Eduardo
Dâmaso and
Henrique
Machado and
published on
the 24th
July 2008.
Its contents
is totally
reproduced
and
announced on
the front
page, having
been
attributed
to Gonçalo
Amaral in
particular
the
following
statements
(...)
65. The
Prosecutor
Office in
Portimão
determined
the creation
of a digital
copy of the
investigation
process,
with the
exception of
parts
subject to
absolute
secrecy, and
its
delivery,
upon
request, to
several
people,
including
journalists,
which
occurred.
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Page 60
66. The
content of
such a
digital copy
was made
public,
including
through the
Web, having
been
publicly and
universally
read,
commented
and
discussed.
67. The
claimants
Kate and
Gerald
McCann have
alerted the
press about
the
disappearance
of their
daughter.
68. The
claimants
Kate McCann
and Gerald
McCann gave
an interview
to the
North-American
TV
program “Oprah"
hosted by
Oprah
Winfrey,
revealing
the
existence of
new
witnesses,
reconstructions
and e-fits.
69. The
Oprah
interview
was worldly
broadcast by
signals
available
through
satellite
and cable
networks.
70. This
interview
for the
Oprah
program was
broadcast in
Portugal by
(the TV
Channel)
SIC, on the
9.05 and
12.05.2009.
71. The
claimants
Kate McCann
and Gerald
McCann, in
collaboration
with the
British
television
station
Channel 4,
made
a documentary about the disappearance of their daughter, entitled
Still
missing
Madeleine,
lasting 60
'.
74. The
documentary Still
missing
Madeleine,
translated
Maddie,
Two Years of
Anguish,
was
broadcast by
SIC on
12.05.2009.
75. On
17.10.2007,
Clarence
Mitchell,
spokesman
for Kate
McCann and
Gerald
McCann said
they were
realistic
enough to
admit that
their
daughter
would
probably be
dead.
76. There
was a huge
public
interest in
Portugal and
throughout
the world,
about the
events
surrounding
the
disappearance
of Madeleine
McCann, the
investigations
carried out
to find her
and to
determine
what in fact
happened,
their
evolution
and
vicissitudes,
among which
the
constitution
of the
claimants
Kate and
Gerald
McCann as
suspects in
the
investigation
process and
the removal
of the
defendant
Gonçalo
Amaral from
investigations
that were
developed
under his
coordination.
77. The
claimants
Kate and
Gerald
McCann
hired,
through
Madeleine's
Fund,
PR firms and
spokesmen.
78. The
so-called
Maddie case
has been
deeply
treated in
the
Portuguese
society and
in foreign
countries,
either by
media organs
or in books,
like the
works of
Paulo
Pereira
Cristovão,
Manuel
Catarino and
Hernani
Carvalho. |
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Page 61
79. The
so-called
Maddie case
was
commented by
Dr.
Francisco
Moita
Flores,
former
Inspector,
writer, and
criminologist,
as a
columnist in
various
media.
80. The
facts
related to
the criminal
investigation
of Madeleine
McCann's
disappearance
that the
defendant
Gonçalo
Amaral
refers to in
the book, in
an interview
with the
newspaper
Correio da
Manhã and in
the
documentary
are mostly
facts that
occurred and
are
documented
in this
investigation.
Next, let us
recall the
essential
nucleus of
the
"European
consensus"
reached by
the case-law
of the ECHR
on freedom
of
expression,
built on
interpretation
and
application
of art. 10°
of the
European
Convention
of Human
Rights :
(I) Freedom
of
expression,
a postulate
of
democratic
society and
right. Being
the basis of
pluralism,
of tolerance
and of the
spirit-opening
necessary to
the progress
of this
group of
societies
and to the
individual
development
of its
members ;
(II) the
limitations
on freedom
of
expression
must be
provided for
by law,
pursue a
legitimate
aim and be
necessary in
a democratic
society ;
(III) when,
in debates
of issues of
public
interest,
the
possibility
of
restrictions
on freedom
of
expression
is
particularly
limited ;
(IV) the
politicians,
the public
figures and
senior
officials of
public
administration,
when in the
exercise of
their charge
are subject
to limits of
criticism
wider than
private
persons.
(V) In the
examination
of the
limits of
freedom of
expression,
de facto
assertions
have to be
distinguished
from
statements
of value,
assertions
addressed to
the
opponent's
opinions
from
appraisals
on the
opponent's
person, and
what is
criticism
from what
constitutes
an insult
and
(VI) the
press has
the duty to
transmit
information's
and ideas on
matters of
public
interest and
in doing so
it is
allowed to
resort to a
certain
amount of
exaggeration,
even of
provocation
(Cf. among
many others,
Smolor vs
Poland,
Thoma vs
Luxembourg
and Palomo
Sanchez et
al vs
Spain). Cf.
also about
(I) Dalban
vs Romania
and
Sabanovic vs
Serbia and
Montenegro
(5955/06).
As regards
point (II),
Azevedo vs
Portugal
(20620104)
and Roseiro
Bento vs
Portugal
(29288/02).
Concerning
point
(III).,
Lopes Gomes
da Silva vs
Portugal
(37698/97)
and Heinisch
vs Germany
(28274108).
As to the
point (IV),
Sabanovic vs
Serbia and
Montenegro
(5995/06)
and
Vellutini
and Michel
vs France
(32280/09).
On the topic
of (V),
Petrina vs
Romania
(78060/01)
and Petrenco
vs Moldavia
(20928/05)... |
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Page 62
… As for
point (VI),
Renaud c.
France
(13290/07)
and UJ vs
Hungary
(23954/10)).
In view of
the above
legal and
case law
framework,
it is
necessary to
examine the
specific
situation
set out in
the minutes
of this
case, taking
into account
the facts (materia
de facto)
given as
proven,
already
reproduced.
What results
from this,
as well
referred in
the sentence
of the first
instance, is
that the
book in
question
is the
expression
of an
opinion,
including
the account
of the
conclusions
that the
author draws
from the
means of
obtaining
evidence
produced in
the
investigation
in order to
formulate a
thesis, an
hypothesis
of
verification
of the
facts.
It appears
that both
the
interview as
well as the
documentary
at stake are
nothing more
than ways of
publicising
the book and
the thesis
defended
there,
although the
documentary
develops it
in a way,
perhaps,
more
appealing.
That same
thesis is
synthetically,
as well
referred in
the sentence
of the first
instance,
that there
was no
kidnapping
of the
minor,
contrary to
the initial
premise of
the criminal
investigation
which is
what the
child's
parents
maintain up
to now. What
happened was
the
accidental
death of the
child in the
flat of the
tourist
resort, then
the cover up
of this
event
through the
concealment
of her
corpse and
the
simulation
of the
referred
crime,
carried out
by the
claimants
Gerald and
Kate
McCann.
However, as
stated by
the justice
instances,
the put
forward
thesis is no
novelty,
since it is
also
contained in
the report
referred to
in n° 9 of
the proven
facts,
elaborated
in the
framework of
the criminal
investigation
with the
date of
10/9/07.
This was
then a line
of inquiry
pursued in
the
investigation
which,
incidentally,
established
the
constitution
of the
presently
appellants
as
arguidos
(formal
suspects)
(cf. n°s 10
and 11 of
the proven
facts).
In addition,
since the
office of
the Portimão
Public
Prosecutor
provided a
copy of the
aforementioned
investigation,
namely to
journalists,
its content
was publicly
and
universally
divulged and
discussed
(cf. n°s 65
and 66 of
the proven
facts).
Consequently,
what is
discussed in
the present
case is the
exercise of
the right to
opinion of
the
respondent
on matters
of public
interest
concerning
the
appellants
who, in this
case, have
to be
considered
public
figures.
In fact, the
'public
figure'
concept
arises in
opposition
to the
'private
figure' one,
being this
one the
anonymous
citizens,
living in
the
simpleness
of their
existence. |
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|
Page
63 |
|
Page 63
Concerning
the minutes
of this
case, it can
be said,
taking into
account the
typology in
which is
analysed the
concept of
public
figure
referred to
by Iolanda
A.S.
Rodrigues de
Brito, in
Freedom of
Expression
and Honour
of Public
Figures,
pp. 46-7,
that we are
dealing with
relative
public
figures, in
so far as
the
appellants
intervene
publicly in
order to
influence a
debate of
public
interest.
This way,
the
perspective
of their
public life,
connected
with that
debate,
subjects
them to a
public
interest for
information,
which
guarantees
them the
possibility
of accessing
the social
media.
And also,
they are
voluntary
public
figures,
because they
accepted to
be thrown
into the
vulnerability
of the
public
sphere, as a
consequence
of the role
that they
tried to
assume in
the public
debate in
which they
decided to
intervene.
Actually, as
stated in
the
judgement
under appeal
and as it
results from
the proven
facts, it
was the
appellants
themselves
who, by
virtue of
having easy
access to
the public
debate,
multiplied
in
interviews
and
interventions
in the
national and
international
media. Thus
they opened
the way for
any person
wishing
equally to
express an
opinion on
the case,
contradicting
their
thesis.
Now, as
Francisco
Teixeira da
Mota points
out, op.
cit. p. 21,
The ECHR,
in assessing
the cases
that are
submitted to
them,
grants' the
maximum
degree of
protection
to the
public
debate and
to freedom
of
expression,
when public
or political
issues are
at stake,
including
the public
figures
themselves
and their
actions.
This Court
in fact
considers
that freedom
of
expression,
as provided
for in
article
10°-1 of the
European
Convention
on Human
Rights,
constitutes
one of the
essential
foundations
of a
democratic
society, one
of the basic
conditions
for its
progress and
for the
development
of every
man.
As already
mentioned,
the ECHR has
developed a
doctrine of
enhanced
protection
of the
freedom of
expression,
when the
person
targeted by
the
imputations
of facts and
by the
formulation
of
dishonourable
value
judgements
is a public
figure and
when a
matter of
public
interest is
at stake.
Actually, being
a public
figure and
not a mere
private
person, the
targeted
person is
more
exposed,
unavoidably
and
consciously,
to a tight
control of
his
behaviour
and opinions
by
journalists
as well as
by the
general
public. This
is why the
public
figure
should
demonstrate
a much
greater
tolerance in
regard of
such
control.
And this is
all the more
so when it
happens that
the targeted
persons
themselves
are the ones
who utter
public
statements
susceptible
of
criticism. |
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|
Page
64 |
|
Page 64
Of course
the public
figure is
entitled to
protection
of his
reputation,
even outside
the scope of
their
private
life.
What is
meant is
that the
imperatives
of such
protection
must be
weighed
against the
interests of
free
discussion
of public
issues.
This way, in
the name of
robust
controversy,
should not
be protected
unjustified
personal
attacks
addressed to
dignity,
integrity
and moral
and
professional
probity,
considered
obviously
unnecessary
and
disproportionate.
However,
here too,
the intense
confrontation
of ideas can
easily lead
to
determined
exaggerations,
which must,
to a
reasonable
extent, be
protected,
particularly
in cases
where it
occurs in a
public forum
endowed with
reasonable
conditions
of equality
and
reciprocity.
We observe,
on the other
side, that
freedom of
opinion, in
the wording
of the art.
10° of the
European
Convention
on Human
Rights,
is the first
of the
constitutive
elements of
freedom of
expression.
The
distinction
between
facts and
opinions is
one of the
aspects that
the ECHR
refers to as
of
particular
importance.
Thus,
while the
existence of
facts is
possible to
demonstrate,
the truth of
opinions is
not
susceptible
of being
proved.
Requiring
the proof of
the truth of
an opinion
is
impossible
to fulfil
and
infringes
the own
freedom of
expression,
which is a
fundamental
part of the
right
guaranteed
by the art.
10° of the
"European
Convention
on Human
Rights".
However,
even when an
assertion
corresponds
to a value
judgement,
the
proportionality
of the
interference
may depend
on the
existence of
a sufficient
basis for
the
contested
statement,
since an
opinion
without
factual
basis to
support it
might be
excessive
(cf.
Oberschlick
vs Austria
(1991)).
Freedom of
opinion
enjoys an
almost
complete
protection
in the sense
that the
possible
restrictions
allowed by
article
10°-1 are
inapplicable
because they
reveal an
incompatibility
with
democratic
society,
such
protection
preventing
the States
from
discriminating
between
citizens
according to
their
opinions.
Citizens
indeed can
not suffer
negative
consequences
because of
their
opinions
(cf. in this
sense,
Iolanda
Brito, op.
cit. p. 65).
According to
Manuel da
Costa
Andrade, in
"Freedom of
the Press
and Personal
Inviolability",
Coimbra, p.
274, the
tolerance
given to
value
judgement is
ostensibly
more
generous
than that
granted to
de facto
imputations
(...).
|
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 |
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|
Page
65 |
|
Page 65
As Anabela
Gradim
points out
in "Handbook
of
Journalism -
Urbi et Orbi
Style Book",
p. 74,
Who writes
opinion is
aware of the
partiality
of their
positions,
but
simultaneously
admits and
wishes that
these be
shared and
adopted by a
large number
of
recipients
of this
opinion -
that is the
meaning of
the
argumentation
: convert,
convince,
regiment
(Cf. Also
Jónatas
Machado,
"Freedom of
Expression–Constitutional
Dimensions
of the
Public
Sphere in
the Social
System",
BFDUC,
Coimbra,
pp.425-6 and
768).
The ECHR has
stressed
that issues
of public
interest
should be
debated and
that
opinions
expressed on
such issues,
offensive to
the honour
of public
figures,
often
arising
encrusted in
violent,
hard and
exaggerated
language,
should be
protected by
freedom of
expression.
In the
present
case, what
is verified
is that the
respondent
conveyed his
opinion, in
the terms
exposed
above,
taking into
account,
according to
his
understanding,
the outcome
of the
elements of
evidence and
the clues
gathered in
the scope of
the criminal
investigation
opened by
the
disappearance
of Madeleine
McCann on
3/5/07.
Thus, the
enhancing
judgment and
the
logical-deductive
reasoning he
develops
throughout
the book
leads the
reader to
the
conclusion
that the
child -
whose
custody and
safety,
along with
that of her
siblings
Sean McCann
and Amelie
McCann, were
neglected by
her parents,
here
appellants,
though
neither
reckless nor
grossly, as
it is said
in the
filing order
issued by
the
prosecutor
of the
Republic on
21/7/08 -
died
accidentally
inside the
apartment
where she
was, after
which
occurred the
simulation
of her
abduction
and the
concealment
of her
corpse.
While he's
reasoning,
the
respondent
questions
the grounds
or the
foundations
on which the
allegation
that
Madeleine
had been
abducted
could be
sustained.
Those
conclusions
were
subsequently
reproduced
by the
respondent
in the
documentary
and
interview
mentioned
above, where
he sought to
discredit
the
affidavit of
the
appellant
Kate McCann.
There is no
remaining
doubt that
the
respondent
having been
up to
2/10/07, the
Judicial
Police
Inspector
responsible
for
coordinating
the
investigation
into the
disappearance
of Madeleine
McCann (n°12
of the
proven
facts), he
could not
fail to
know, in
detail, ... |
| |
 |
| |
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|
Page
66 |
|
Page 66
… the clues
and means
of proof
hitherto
collected in
it, and the
inquiries
that had
hitherto
been carried
out.
That is why
it is not
surprising
that the
facts
related to
that
investigation
that the
respondent
refers to in
the book, in
the
interview
and in the
documentary,
are mostly
facts that
occurred and
were
documented
in this
investigation
(n° 8 of the
proven
facts).
It should be
noted that
the
understanding
defended by
the
respondent
was, also,
in almost
coincident
terms,
shared by
chief
inspector
Tavares de
Almeida, who
wrote the
report
addressed to
the Public
Ministry and
dated 10/9/7
(n° 9 of the
proven
facts).
It has still
to be
reckoned
that the
Public
Ministry by
fomenting by
the JIC the
obtention of
(telecommunications)
traffic
data.,
alluded to
their
necessity
for the
investigation
of the
crimes of
kidnapping,
homicide,
exposure or
abandonment
and
concealment
of a corpse.
The sought
to be
obtained
data were
furthermore
connected to
the
appellants
and included
not only the
date of the
facts but
also the
period they
were staying
in Portugal
(n°10 of the
proven
facts).
These data
were
collected by
order of the
JIC (n° 11
of the
proven
fact).
Which means
that the
thesis
profiled by
the
respondent,
at a certain
time,
deserved
being
welcomed by
the entity
constitutionally
in charge of
carrying out
the penal
action (n°
11 of the
proven
facts).
For that
matter, the
appellants
were
constituted
"arguidos"
in the
criminal
investigation
(n° 80 of
the proven
facts).
This implies
that emerged
supported
suspicion
that they
had
committed
crimes or
crimes (cf.
art. 58° and
59° of the
CPP
).
It is true
that the
criminal
investigation
was
eventually
closed, in
particular
because none
of the clues
which led to
the
constitution
of the
appellants
as
arguidos
was
subsequently
confirmed or
consolidated
(n°15 of the
proven
facts).
However,
even in the
filing
dispatch
serious
reservations
are raised
as to the
likelihood
of the
allegation
that
Madeleine
had been
abducted, in
view of the
doubts
raised by
the Jane
Tanner/Kate
McCann
version.
The
investigation
intended to
see
clarified
those doubts
by the
reconstitution
of the
events
mentioned in
the closing
dispatch, an
initiative
however that
was made
unfeasible
by the
witnesses'
failure to
appear after
being
summoned to. |
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| |
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|
Page
67 |
|
Page 67
In the said
order, it
was
concluded
also that
the
appellants
had
neglected,
although not
recklessly
or grossly,
the duty of
custody of
their
children,
and still
that,
although it
had not been
possible to
determine if
the child
was alive or
not, it
seemed more
likely she
was dead.
Actually a
spokesman
for the
appellants
said on
17/10/07
that they
were
realistic
enough to
admit that
their
daughter was
probably
dead (n° 75
of the
proven
facts).
From another
angle, it
has to be
observed
that,
in the
introductory
note to the
book at
stake,
the
respondent
affirms that
the book's
objective is
to restore
his good
name which,
in his
understanding,
was
tarnished in
the public
sphere, to
contribute
to the
discovery of
the material
truth and to
the
achievement
of justice
(n°23 of the
proven
facts)
It is clear,
however,
that the
proven facts
reveal that
the
respondent
intended, on
the one
hand, to put
in crisis
the decision
to remove
him from the
investigation,
getting even
to the point
to suggest
there had
been a
political
management
of the
investigation
and, on the
other hand,
to safeguard
the rigour
of the work
of all the
police
professionals
involved in
the
investigation
until the
moment he
ceased to
coordinate
them.
Of all those
circumstances
does not
result, in
our view,
that
underlying
the book,
the
documentary
and
the
interview,
exists an
defamatory
intention
against the
appellants,
i.e an
animus
injuriandi,
but rather
an animus
informandi
and an
animus
defendendi.(23)
The opinion
expressed by
the
respondent
is
sufficiently
detailed in
an
intelligible
and logical
assessment
of the facts
and elements
of evidence
gathered in
the
investigation.
Therefore
the
existence of
a mere
attack ad
hominem
to the
persons of
the
appellants
is not to be
prefigured.
In addition,
the
disappearance
of Madeleine
and the
subsequent
investigation
have become
subjects of
general
interest and
discussion
at national
and even
international
level,
which,
incidentally,
was afforded
by the
conduct of
the
appellants
themselves
(n°s 65 to
71 and 76 to
79 of the
proven
facts).
Thus,
everything
points to
balancing
the
interests at
stake and
following a
balancing
methodology
adapted to
the
specificity
of the case,
in the sense
of freedom
of
expression,
which in
this case
requires
greater
protection,
taking into
account,
also, the
European
legal
context
where we are
inserted and
the
influence of
the European
jurisprudential
paradigm of
human
rights. |
| |
| Note 23 |
animus injuriandi (intention to offend) vs animus informandi (intention to inform) and animus defendendi (intention to defend). |
|
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 |
| |
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|
Page
68 |
|
Page 68
But is, in
this case,
the
protection
of the
appellants'
rights to
their good
name and
reputation
closely
related to
the
presumption
of
innocence,
as said in
the first
instance's
sentence?
And this
because, as
the
appellants
claim in the
conclusions
of their
appeal
allegations,
beyond their
being
absolutely
innocent and
cleared by
virtue of
the filing
order to
close the
proceedings,
are they
also
entitled to
benefit from
the
principle of
presumption
of
innocence?
Let's see.
First of all
it has to be
said that
the
principle of
the
presumption
of innocence
(art. 32°-2
of the
CRP,
11°-1 of the
UDHR and
6°-2 of the
European
Convention
on Human
Rights)
is a rule of
treatment to
be given to
the
arguido
(formal
suspect)
throughout
the judicial
criminal
process.
Accordingly,
this
principle
can not be
construed as
a
restriction
on public
discussion
of
potentially
criminal
facts,
despite that
public
bodies
should, in
their
communications,
resort to
the
necessary
reserve to
avoid
creating the
conviction
that the
arguido
is in fact
guilty (Cf.
Konstas vs
Greece of
28/11/ 11
(n°
053466/071).
That
referred
principle
may even
impose,
on the
threshold of
criminal
proceedings,
respect for
an
absolutory
penal
decision or
even for a
decision of
archiving by
the judicial
authorities
involved in
subsequent
proceedings
(Allen vs
United-Kingdom,
Of
12/7/2013,
n°
1025424/0991).
Nevertheless,
the Court of
Justice of
the
European
Union
has decided
that the
principle of
presumption
of innocence
does not
apply to
subsequent
civil
proceedings
(mainly
compensatory)
to criminal
proceedings,
at risk of
depriving
the victim
of her own
right to
accede to
the courts
and to be
compensated
(Cf. the
judgements
in Y vs
Norvvay
(56568/00)
of 11/
5/2003 and
Diacendo vs
Italy
(124/04) of
05/07/2012).
As Jónatas
Machado
points out,
in "Freedom
of
Expression,
Public
Interest and
Public
Figures and
Equalities",
BFDUC,
vol.LXXXV,
2009, p. 91,
The
presumption
of
innocence,
because it's
only a
presumption,
cannot
overcome the
search for
the truth
and the
right of
citizens to
the truth.
It cannot as
well prevent
public
criticism
and public
scrutiny of
the
functioning
of justice.
The same
happens,
furthermore,
with the
attempt to
demonstrate
the
innocence of
a condemned
person and
thereby to
move aside
the mark of
the
conviction.
The search
for truth,
including
the truth
about
justice, has
always been
one of the
main
justifications
of freedom
of
expression. |
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|
Page
69 |
|
Page 69
It must be
reminded
that, in the
present
case, the
issue isn't
the
appellants'
penal
liability,
in other
words their
innocence or
their guilt
concerning
the facts
leading to
the
disappearance
of her
daughter
doesn't have
to be
appreciated
here.
What is in
discussion
here is
merely the
civil
liability of
the
respondents,
on the
grounds that
they have
expressed
and
disclosed
the
above-mentioned
thesis/opinion
on the
disappearance
in question.
It follows
that the
outcome of
the present
case is not
such as to
call into
question the
extra-procedural
dimension of
the
presumption
of
innocence.
This means
that, even
if the
action does
not proceed,
it will not
imply, even
in the eyes
of the
community.
any
consideration
of the
appellants'
liability,
because such
outcome will
never will
be able to
be equated
to an
observation
of
respective
culpability
(cf. on this
topic the
judgements
Del Latte vs
Holland
(n°44760/98)
of 9/11/2004
and Cheena
vs Belgium
of
9/5/2016).
In addition,
we are faced
with a
decision of
filing by
the Public
Ministry
which is
subject to
modification
through
various
ways.
Thus, in
addition to
the recourse
to the
jurisdictional
way, by
opening the
inquiry (see
note p.21)
(art.
287° of the CPP)
and the
complaint to
the
hierarchical
superior
(art. 278°
of the CPP),
the
investigation
can be
reopened if
new elements
of evidence
arise
invalidating
the grounds
called upon
by the
Public
Ministry in
the filing
dispatch
(art. 279°
of the CPP).
This is
indeed even
mentioned in
the Note
to the
Social
Communication
released by
the Attorney
General's
office on
21/7/2008
and
announcing
that the
filing of
the
investigation
had been
decided. It
was reported
that it
could be
reopened on
the
initiative
of the
Public
Ministry or
at the
request of
any
interested
party if new
elements of
evidence
arise
triggering
serious,
pertinent
and
consequential
proceedings
(n°14 of the
proven
facts).
In this way,
as the
aforementioned
filing order
is not a
judicial
decision
stricto
senso,
nor does it
assume a
definitive
form, less
would it be
justified
invoking the
principle of
the
presumption
of innocence
to restrain
freedom of
expression.
And the
safeguarding
of the
authority of
the judicial
power (cf.
article
10°-2 of the
European
Convention
on Human
Rights)
is not
alluded to,
since is
definitely
outdated the
traditional
idea that
criticism
against the
judicial
power must
be
proscribed
as it
contributes
to the
undermining
of its
dignity,
authority
and
credibility
in the long
term. The
best
guarantee of
dignity of
all State
institutions
in the long
run consists
in its
permanent
opening to
public
criticism. |
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|
Page
70 |
|
Page 70
...(cf.
Jónatas
Machado,
Freedom of
Expression -
Constitutional
Dimensions,
op. cit. pp.
566-7)
And let not
be said,
too, that
the
appellants
were cleared
by the order
of filing
the criminal
proceedings.
In fact,
that
dispatch was
not
proclaimed
by virtue of
the Public
Ministry
having
gained the
conviction
that the
appellants
had not
committed
any crime
(cf. art.
277° of the CPP).
The filing,
in this
case, was
decided
because it
was not
possible for
Public
Ministry to
obtain
sufficient
evidence of
the practice
of crimes by
the
appellants
(cf. the
cited art.
277°-2)
There is,
therefore, a
remarkable
difference,
and not
merely a
semantic
one, between
the legally
admissible
grounds of
the filing
order.
Thus, it
does not
appear
acceptable
to consider
that the
alluded
dispatch,
based on the
insufficiency
of evidence,
should be
treated as
evidence of
innocence.
We consider,
therefore,
that the
invocation
of breach of
the
principle of
presumption
of innocence
should not
be upheld.
That
principle
does not
fall under
the decision
about the
question
that has to
be resolved.
But was the
freedom of
expression
of the
respondent
conditioned
by the
functions he
performed
and did
those, even
when he was
retired,
impose on
him the
reserve duty,
as was
upheld in
the first
instance
sentence and
is
reaffirmed
by the
appellants ?
It is
certain that
the
respondent,
in the
capacity of
retired
Judicial
Police
agent,
continues to
be linked to
the public
service,
keeping
furthermore
the rights
and duties
that do not
depend on
the activity
situation
(cf. art
74°-1 of the
Retirement
Statute,
approved by
DL n°498/72
of 9/12).
As referred
to in the
Attorney
General
Consultative
Council
opinion of
16.12.06,
quoted in
the first
instance
sentence, by Esteves Remédio, the doctrine considers as duties of
the retired
that do not
depend on
the activity
situation
the duty of
loyalty, the
duty of
nondisclosure
and the duty
of
appropriate
conduct,
this being
insistently
reported to
the
abstention
from
committing
crimes.
Moreover
that
recommendation
mentions
that the
duty of
nondisclosure
is to
maintain
professional
secrecy as
for the
facts of
which (the
retired
agent) is
aware by
virtue of
the
exercise... |
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Page
71 |
Page 71
… of his
charge, and
that are not
aimed at the
public
sphere.
(quoting
art. 3° of
the
disciplinary
statute).
And, furthermore, the nondisclosure duty extends beyond the
exercise of
one's
functions,
remaining in
the course
of
retirement,
but, as in
the activity
situation,
it is
required
that the
conduct
affects in a
pertinent
way the
functioning
of the
service or
the dignity
and the
prestige of
the function
or of the
Administration.
It should be noted that nowhere in the legislation quoted
regarding
this in the
first
instance
sentence, it
is alluded
to the
reserve
duty.
In this way the art. 5°-2e of the DL 196/94 of 21/7, which
approved the
Disciplinary
Regulation
of the
Judiciary
Police,
expressly
refers to
'the
nondisclosure
duty'.
For its part, the art.12° of the DL n°275-A/2000 of the
9/1, which
approved the
new Organic
Law of the
Judicial
Police, is
subject to
the epigraph
"Secret of
justice and
professional"
(cf. article
149°
regarding
retired
agents).
Now, as Cunha Rodrigues wrote in Justice and
Communication,
BFD 68
(1992),
p.124,
'nondisclosure'
should not
be confused
with
'reserve'.
In the present case and on the topic of the nondisclosure
duty or of
the secrecy
of justice,
which
remains in
the course
of
retirement,
it must be
understood
that we are
faced with a
functional
obligation
which
essentially
protects the
interests of
the service
to which the
respondent
belonged,
namely the
effectiveness
of the
criminal
investigation.
Still, the facts at stake had already been made public by
the judicial
authority
and widely
debated,
both
nationally
and
internationally.
Moreover the
investigation
was already
closed.
On the other hand, the eventual breach of the nondisclosure
duty on the
part of the
respondent
would not thrust out, in the sphere of private individuals,
any
subjective
rights or
legally
protected
interests,
and would
not
therefore be
considered
as a source
of
illicitness.
In addition, the ECHR, in similar situations, takes mainly
into account
the
importance
of the
cooperation
of an
enlightened
and
well-informed
public to
the proper
functioning
of justice
(cf. Saygili
and Others
vs Turkey of
8 /1/08 and
July and
Sarl
Liberation
vs France of
14/2/08).
We therefore consider that freedom of expression does not
either have
to yield to
the invoked
functional
duty borne
by the
respondent,
reason why
his conduct
was not
illicit in
the terms
taken into
account in
the first
instance
sentence.
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Page
72 |
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Page 72
In our view,
the judgment
under appeal
is correct
by
understanding
that the
argumentation
of the First
Instance may
be upheld
and by
stating that
it would be
hardly
understandable
that a civil
servant,
even more a
retired one,
should carry
on his
silence and
reserve
duties, thus
limiting the
exercise of
his right to
opinion as
to the
interpretation
of facts
already made
public by
the judicial
authority
and widely
discussed
(actually
largely at
the
instigation
of the
protagonists
themselves)
in national
and
international
media.
Contrary to
what the
applicants
claim,
in order to
subsume the
legal
provision
for
unlawfulness
considered
by article
484° of the
CC, it
is not
enough that
the fact
stated or
disclosed is
susceptible,
given the
circumstances
of the case,
to undermine
the prestige
enjoyed by a
person or
the good
image of
that person
in the
social
environment.
In fact,
according to
the Latin
juridical
axiom,
qui jure suo
utitur
nemini facit
injuriam
(note : he
who draws
upon his
legal rights
harms no
one).
This means
that who
acts in the
exercise of
a right is
acting in
accordance
with the
legal system
and cannot
therefore be
held
responsible
in a civil
point of
view (see
Antunes
Varela,
General
Obligations,
p.36).
Thus, when
facts are
imputed or
expressed
value
judgements
offensive to
the honour
of a public
figure, it
is possible
that freedom
of
expression
is being
legitimately
exercised.
That being,
in the
matter of
expressing
value
judgements,
the right to
freedom of
expression
has a
broader
supporting
appetence,
given even
the
exceptional
nature of
the
obligation
to
compensate
for value
judgements.
This does
not preclude
the
maintenance
of a concern
for a
balanced
legal and
concrete
solution to
the conflict
between
freedom of
expression
and the
honour of
public
figures.
What these
notions
cannot be
submitted to
is to any
anticipated
judgement of
abstract
preference
for any of
them, since
they meet
two
fundamental
rights,
constitutionally
consecrated,
and that
hierarchically
occupy the
same place.
But since it
is
impossible
for the
conflict
between two
equal rights
or of the
same species
to be
resolved by
the
principle of
equal
treatment
(cf. art.
335° of the
CC), the
right that,
in its
exercise, is
considered
superior
will be
bound to
prevail (cf.
n° 2 of the
same
article),
... |
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Page
73 |
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Page 73
… taking
into account
the
necessary
balancing
criteria
evinced by
this
specific
case.
These
criteria
have already
been set out
in the
present
judgement,
as are in
particular
the
achievement
of a public
interest,
the public
status of
the alluded
individuals,
the
sufficient
factual
basis of the
ventured
value
judgements
and the
nature
thereof, as
well as the
respective
context
(having a
background
of heated
controversy
on a matter
of relevant
public
interest).
We consider
that, in
this case,
in view of
the verified
matter of
facts, the
exercise of
freedom of
expression
was
contained
within
limits which
must be
considered
admissible
in a (post-)
modern
democratic
society,
open and
plural, in
view of the
aforementioned
criteria of
equilibrium
and the
alluded
principle of
proportionality,
which
excludes the
unlawfulness
of the
honour
injury of
the
appellants.
Such a
conclusion
results from
the
interpretation
of the
internal
norms in
conformity
with the
Constitution,
but also
with the
European
Convention
on Human
Rights,
read by the
lawcase
compendium
of the ECHR.
According to
Jónatas
Machado, in
"Freedom of
Expression -
Constitutional
Dimensions",
p. 750,
the measure
of civil and
penal
protection
of
personality
rights is
determined
on the basis
of the
constitutional
parameters
of the
freedoms of
communication,
refusing any
systematic-immanent
enhancing
autonomy of
those
branches of
law and
emphasising
particularly
the
constitutional
purpose of
creating a
public
sphere of
open and
uninhibited
discussion
of matters
of general
interest,
this
objective
having
always to be
present in
the analysis
of the
results of
the
application
of the law.
Adding, this
revere
professor,
in "Freedom
of
Expression,
Public
Interest",
op. cit.
p.74, that
The
preferential
position of
freedom of
expression,
in its
quality of
precondition
for the
democratic
functioning
of the
political
system, is
an
indisputable
constitutional
truth.
And
alluding,
more ahead,
last op.
cit. p. 77,
to the
duty to
interpret
the legal
norms on the
protection
of honour,
good name
and
reputation
in harmony
with the
Constitution,
in order to
serve the
promotion of
constitutional
purposes
substantiating
the
protection
of a free
and
democratic
society
where
questions of
public
interest
seal the
subject of
information
and free and
open
discussion.
The case-law
of the ECHR,
as it has
been already
abundantly
exposed
above, is
obviously
inclined
towards a
restrictive
interpretation
of
personality
rights... |
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Page
74 |
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Page 74
… in
confrontation
with freedom
of
expression,
so as not to
compromise
its central
role in a
democratic
society.
On the other
hand, as
stated in
the summary
of the
aforementioned STJ Ruling of 7/2/08 - From the case-law which has been
ratified by
the ECHR, it
results an
imposition
on the mode
of thinking
: it is not
justified
wondering
straightaway
whether a
particular
piece of
journalism
offends
someone. The
starting
point should
rather be
the freedom
enjoyed by
the
respective
author(s).
Only after
it should be
questioned
whether is
justified –
in view of
the
referential
criteria of
the same
court,
including a
proper
margin of
appreciation
on the part
of the
internal
organs of
each of the
States
signatory of
the
Convention –
the
restrictive
interference
in the field
of that same
freedom and
the
consequent
passage to
legal
sanctions.
For that
matter, the
Constitutional
Court has
affirmed a
clear
historic
will of the
constituent
legislator
to follow
the step of
the European
jurisprudence
in the
development
of the
fundamental
rights
likewise
provided for
in The
Convention
and the
Constitution
(cf. the
Ruling of
the
Constitutional
Court
157/2001, in
D.R. Serie I
de 10/5/01).
Faced with a
settled
case-law by
the ECHR, as
it happens
in cases
such as the
present one,
the
Portuguese
courts
cannot but
be
influenced
by the
European
paradigm of
human
rights.
This,
however,
does not
mean
resolving
the conflict
in question
with an
abstract
preference
for freedom
of
expression,
but rather
linking to
the
assumptions,
i.e. to the
European
criteria for
conflict
resolution.
What is at
stake,
fundamentally,
is to
identify the
legal good
that will
be,
concretely,
prevailing,
taking into
account
that, in
each
conflict
resolution,
the balance
pans, to
begin with,
are in a
position of
equilibrium,
since
freedom of
expression
and honour
must start
from a
position of
equality.
For this
purpose, it
is necessary
to introduce
the
respective
evaluation
criteria in
the pan of
freedom of
expression
or in the
pan of
honour.
And it is
playing with
weights and
counterweights
that, in the
end, it will
appear which
of the pans
weighs more.
Well, in the
present
case, as it
results from
the
foregoing,
the pan that
weighs more
and is the
freedom of
expression
one.
Which
amounts to
saying that
this is the
legal good
that, in
this case,
prevails. |
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Page
75 |
|
Page
75
Thus we
shall have
to conclude
that, in the
present
case,
prevail the
rights of
the
respondents
to freedom
of
expression
and
information
and to
freedom of
the press
and of the
media.
Therefore
the sentence
under appeal
does not
deserve
censure
while
excluding
the
unlawfulness
of the
respondents'
conduct and,
consequently,
absolving
them of all
requests.
Dismissed,
accordingly,
are the
conclusions
of the
appellants'
allegations.
We do not
reckon that
this
judgement
has violated
any legal
rule turned
into the
CRP ,
but rather
we
understood,
as it
results from
what has
already been
discussed,
that the
interpretation
of the norms
applicable
to this case
was made in
accordance
with the
Constitution.
3 -
Decision.
Given what
has been
said, the
request of
review is
denied and
the appealed
judgement
confirmed.
Costs for
the
appellants. |
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