The McCann v Gonçalo Amaral libel trial as it happens.

[Mr Gray]

Red, thank you for your reply (post 1404) I thought you might know :-D

Everything I've read makes me think that Dr Amaral will win, but my own beliefs are probably effecting that.

Davel, you've given enough hints to your profession for even me to work it out and we've established that I'm no detective :-D

 I would say you are almost certainly wrong re amaral ...too many little clues that he fears the outcome...but we will see

[Victoria]

Red, thank you for your reply (post 1404) I thought you might know :-D

Everything I've read makes me think that Dr Amaral will win, but my own beliefs are probably effecting that.

Davel, you've given enough hints to your profession for even me to work it out and we've established that I'm no detective :-D

Has what you've read come from an accurate, reliable, unbiased source though? If not, then prepare to be disappointed.

[Carana]

That is my understanding of the basis of Portuguese civil libel -- the reverse of the position in English libel law -- that the onus is on the party bringing an action to prove untrue statements they consider to be libel.

Is this what you're looking for, Ferryman?

European Judicial Network (Civil and commercial matters)
Burden of proof

I. THE BURDEN OF PROOF
1.
a) What are the rules concerning the burden of proof?

The rules concerning the burden of proof seek to define the person involved in a case who has to demonstrate certain facts so that the validity of the argument presented by that person in court can be assessed.

In this area, the general criterion is the following: it is up to the person who invokes a right to provide proof to the court of the facts which give rise to such a right, or rather, the facts which normally produce such a right.

The opposing party must show that abnormal events have occurred which set aside or exclude the effectiveness of the factors generating the right in question.

Thus it is up to the party against whom the right is invoked to demonstrate facts impeding, modifying or terminating the right. Impeding facts are those which act as obstacles to the effective creation of the right. Modifying rights are those which alter the scope of the right which has been established. Terminating facts are those which, after the right has been established as valid, cause it to lapse..

In case of doubt the facts must be considered as constitutive and, consequently, proving them must be the responsibility of the party coming to court to exercise the right in question.

In cases where one party is not seeking a judgment against the other party but merely wishes the court to establish the non-existence of a right or a fact, it is up to the defendant (the party against whom the case has been brought) to prove the elements constituting the right which is being claimed.

TopTop

In court actions which must be brought within a certain time limit following the date on which the plaintiff (the party initiating the action) has become aware of a certain fact, it is up to the defendant to prove that this time limit has already expired, unless there is another solution especially established by law.

If the right invoked by the plaintiff is subject to a suspensive condition (an uncertain event in the future on whose occurrence the parties have made the effects of the legal transaction dependent) or to an initial deadline (the moment in time after which the right may arise) , it is up to the applicant to prove that the condition has been met or that the initial deadline has been passed; if the right is subject to a termination condition (an uncertain event in the future on whose occurrence the parties have made the cessation of the effects of the legal transaction dependent) or to a final deadline (moment in time after which the right lapses) , it is up to the defendant to prove that the condition has been met or that the final deadline has been passed.

The above rules are reversed when there is a legal presumption (consequence or inference which the law deduces from a known fact to establish an unknown one) , exemption or release from the obligation to comply with the above rules for the production of proof, or a valid agreement to that effect, when the opposing party has, culpably, made it impossible for the proof to be presented by the party which should produce it, and, in general, whenever the law so determines.

An agreement to reverse the burden of proof is invalid where an inalienable right is involved (one which a party cannot waive merely by making a statement that it wishes to do so) or where it might make it excessively difficult for one of the parties to exercise the right. Similarly, an agreement to exclude any legal mode of proof or to allow a mode of proof other than that provided for by law is also invalid. If the decisions arising from the law in relation to the proof are based on reasons of public policy, such agreements are invalid under all circumstances.

TopTop

When proof is presented by the party on which the burden of demonstrating a particular fact falls, the opposing party can present counter-evidence with a view to raising doubts or uncertainties in the mind of the person judging the reality of the event which it is sought to establish. If there is sufficient doubt, then the decision must go against the party which had the obligation to prove the fact in question.

If there is any doubt on who has the burden of proof, it should lie with the party which stands to benefit from the fact.
b) Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to rebut these presumptions by producing evidence?

Yes, there are such rules.

Firstly, proof is not required for well-known facts, in other words those of public knowledge.

In the same manner, a party which has a legal presumption (defined above) in its favour does not need to prove the presumed fact.

As a rule, legal presumptions can be rebutted, that is, refuted by the presentation of counter proof. There are, however, situations in which the law does not allow rebuttal of the presumption. This is the case, for example, when the law considers as always acting in bad faith any third party that acquires a right after falsification has been established (situations where it is sought to demonstrate that, by an agreement between the parties in a certain transaction, and with the purpose of deceiving third parties, there was a discrepancy between the declared transaction and the real intention of the declaring party)

With regard to the presumptions which can be opposed by proof to the contrary, there are several types envisaged by law. The following examples can be given:
(...)

http://ec.europa.eu/civiljustice/evidence/evidence_por_en.htm

In the Murat v. CdaM appeal, it seems that there was a legal presumption in his favour. From what I can gather (happy to be corrected if I've misunderstood), this was because the editor/publisher of a press /media outlet has a certain number of duties, thereby reversing the burden of proof.

Processo:
2768/10.7TVLSB.L1-2
Relator: EZAGÜY MARTINS
Descritores: DIREITO AO BOM NOME
LIBERDADE DE IMPRENSA
INTERESSE PÚBLICO
RESPONSABILIDADE CIVIL
COMPARTICIPAÇÃO
RESPONSABILIDADE SOLIDÁRIA
PRESUNÇÃO LEGAL

Nº do Documento: RL
Data do Acordão: 18/04/2013
Votação: UNANIMIDADE
Texto Parcial: S

Meio Processual: APELAÇÃO
Decisão: PARCIAL PROCEDÊNCIA I - Em matéria de responsabilidade civil, por ofensa do crédito e do bom nome, o ónus da prova cabe ao lesado, limitado à existência das imputações ofensivas dos bens em causa.
II - O facto de determinadas informações sobre a vida privada dos cidadãos suscitarem o interesse do público em termos fácticos, não significa que a sua divulgação seja de interesse público em termos normativos.
III - Não é de tal interesse normativo a urdidura de “factos”, insinuações, associações, juízos conclusivos e, ou, conjeturais, atribuindo ao A. uma personalidade doentia, da área não só da pedofilia como até da zooerastia, compatível com a prática de ilícito criminal relacionado com o desaparecimento de infortunada criança.
IV - O objetivo de aumento de tiragens não pode obnubilar os deveres jornalísticos, aliás de consagração estatutária, de respeito pela presunção de inocência, de não recolha de declarações ou imagens que atinjam a dignidade das pessoas, bem como de publicação de notícias que suscitem discriminação.
V - Na produção do mesmo dano podem comparticipar, por múltiplas formas, várias pessoas, e podendo a comparticipação verificar-se logo em relação à mesma causa do dano, ela “pode resultar ainda, não da colaboração na mesma causa do dano, mas da concorrência de duas ou mais causas.
VI - Nestas hipóteses de concurso real de causas do mesmo dano, em face do lesado, quer haja subsequência (adequada) de causas, quer haja causas cumulativas ou mera coincidência de causas de natureza distinta, qualquer dos responsáveis é obrigado a reparar todo o dano.
VII - A imputação ao diretor de uma publicação periódica, do conteúdo que resulta da própria titularidade e exercício da função e dos inerentes deveres de conhecimento, integra uma presunção legal.
VIII - Esta presunção legal isenta o autor-lesado do ónus da prova do facto, ou seja, o conhecimento, a aceitação e a imputação da publicação, por parte do diretor, a que a presunção conduz.
IX - O normativo do artigo 29º, n.º 2, da Lei da Imprensa, não determina como condição da efectivação da responsabilidade da proprietária da publicação, que o director da mesma seja demandado, conjuntamente com aquela.
(Sumário do Relator)
http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/8ae65886ef70827180257b63003d7a75?OpenDocument

[Cariad]

Has what you've read come from an accurate, reliable, unbiased source though? If not, then prepare to be disappointed.

I believe that the source is accurate, yes. I don't think I'd be disappointed by an outcome that I haven't predicted. More than anything I'm interested in how people can have the same information and yet view it so differently.

It's almost a large social experiment. To put it bluntly, one 'side' is completely blinded by their own prejudices. I believe that it's those supporting the Mccanns who are wrong, they believe that it's me. I'll put my money on the table now and say that I trust the judge to make a decision based on the facts. I think that she'll make the right call and I won't complain about the outcome.

Everything I've seen leads me to believe that the Mccanns have no case. None. Their pretendy psychologist was proof of that. Now, other people who have seen the exact same information have come to the exact opposite conclusion. One of us is deluded. I'm genuinely curious to see which of us it is.

I'll also say that I completely trust Anne's documentation of events and if I have made the wrong call about the outcome, I accept that it is my own bias blinding me and no reflection on her work at all. I am very grateful for all of Anne's hard work! Thank you Anne.

[Eleanor]

I don't think that any of us are deluded.  This is simply a matter of Law, which we don't entirely understand.  And I will also abide by the outcome.

But whatever happens, it will not make The McCanns guilty.  Although I shudder to think of what will happen if Amaral wins.

[jassi]

I believe that the source is accurate, yes. I don't think I'd be disappointed by an outcome that I haven't predicted. More than anything I'm interested in how people can have the same information and yet view it so differently.

It's almost a large social experiment. To put it bluntly, one 'side' is completely blinded by their own prejudices. I believe that it's those supporting the Mccanns who are wrong, they believe that it's me. I'll put my money on the table now and say that I trust the judge to make a decision based on the facts. I think that she'll make the right call and I won't complain about the outcome.

Everything I've seen leads me to believe that the Mccanns have no case. None. Their pretendy psychologist was proof of that. Now, other people who have seen the exact same information have come to the exact opposite conclusion. One of us is deluded. I'm genuinely curious to see which of us it is.

I'll also say that I completely trust Anne's documentation of events and if I have made the wrong call about the outcome, I accept that it is my own bias blinding me and no reflection on her work at all. I am very grateful for all of Anne's hard work! Thank you Anne.

Excellent post that I think many of us would agree with.

[Mr Gray]

Is this what you're looking for, Ferryman?

European Judicial Network (Civil and commercial matters)
Burden of proof

I. THE BURDEN OF PROOF
1.
a) What are the rules concerning the burden of proof?

The rules concerning the burden of proof seek to define the person involved in a case who has to demonstrate certain facts so that the validity of the argument presented by that person in court can be assessed.

In this area, the general criterion is the following: it is up to the person who invokes a right to provide proof to the court of the facts which give rise to such a right, or rather, the facts which normally produce such a right.

The opposing party must show that abnormal events have occurred which set aside or exclude the effectiveness of the factors generating the right in question.

Thus it is up to the party against whom the right is invoked to demonstrate facts impeding, modifying or terminating the right. Impeding facts are those which act as obstacles to the effective creation of the right. Modifying rights are those which alter the scope of the right which has been established. Terminating facts are those which, after the right has been established as valid, cause it to lapse..

In case of doubt the facts must be considered as constitutive and, consequently, proving them must be the responsibility of the party coming to court to exercise the right in question.

In cases where one party is not seeking a judgment against the other party but merely wishes the court to establish the non-existence of a right or a fact, it is up to the defendant (the party against whom the case has been brought) to prove the elements constituting the right which is being claimed.

TopTop

In court actions which must be brought within a certain time limit following the date on which the plaintiff (the party initiating the action) has become aware of a certain fact, it is up to the defendant to prove that this time limit has already expired, unless there is another solution especially established by law.

If the right invoked by the plaintiff is subject to a suspensive condition (an uncertain event in the future on whose occurrence the parties have made the effects of the legal transaction dependent) or to an initial deadline (the moment in time after which the right may arise) , it is up to the applicant to prove that the condition has been met or that the initial deadline has been passed; if the right is subject to a termination condition (an uncertain event in the future on whose occurrence the parties have made the cessation of the effects of the legal transaction dependent) or to a final deadline (moment in time after which the right lapses) , it is up to the defendant to prove that the condition has been met or that the final deadline has been passed.

The above rules are reversed when there is a legal presumption (consequence or inference which the law deduces from a known fact to establish an unknown one) , exemption or release from the obligation to comply with the above rules for the production of proof, or a valid agreement to that effect, when the opposing party has, culpably, made it impossible for the proof to be presented by the party which should produce it, and, in general, whenever the law so determines.

An agreement to reverse the burden of proof is invalid where an inalienable right is involved (one which a party cannot waive merely by making a statement that it wishes to do so) or where it might make it excessively difficult for one of the parties to exercise the right. Similarly, an agreement to exclude any legal mode of proof or to allow a mode of proof other than that provided for by law is also invalid. If the decisions arising from the law in relation to the proof are based on reasons of public policy, such agreements are invalid under all circumstances.

TopTop

When proof is presented by the party on which the burden of demonstrating a particular fact falls, the opposing party can present counter-evidence with a view to raising doubts or uncertainties in the mind of the person judging the reality of the event which it is sought to establish. If there is sufficient doubt, then the decision must go against the party which had the obligation to prove the fact in question.

If there is any doubt on who has the burden of proof, it should lie with the party which stands to benefit from the fact.
b) Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to rebut these presumptions by producing evidence?

Yes, there are such rules.

Firstly, proof is not required for well-known facts, in other words those of public knowledge.

In the same manner, a party which has a legal presumption (defined above) in its favour does not need to prove the presumed fact.

As a rule, legal presumptions can be rebutted, that is, refuted by the presentation of counter proof. There are, however, situations in which the law does not allow rebuttal of the presumption. This is the case, for example, when the law considers as always acting in bad faith any third party that acquires a right after falsification has been established (situations where it is sought to demonstrate that, by an agreement between the parties in a certain transaction, and with the purpose of deceiving third parties, there was a discrepancy between the declared transaction and the real intention of the declaring party)

With regard to the presumptions which can be opposed by proof to the contrary, there are several types envisaged by law. The following examples can be given:
(...)

http://ec.europa.eu/civiljustice/evidence/evidence_por_en.htm

In the Murat v. CdaM appeal, it seems that there was a legal presumption in his favour. From what I can gather (happy to be corrected if I've misunderstood), this was because the editor/publisher of a press /media outlet has a certain number of duties, thereby reversing the burden of proof.

Processo:
2768/10.7TVLSB.L1-2
Relator: EZAGÜY MARTINS
Descritores: DIREITO AO BOM NOME
LIBERDADE DE IMPRENSA
INTERESSE PÚBLICO
RESPONSABILIDADE CIVIL
COMPARTICIPAÇÃO
RESPONSABILIDADE SOLIDÁRIA
PRESUNÇÃO LEGAL

Nº do Documento: RL
Data do Acordão: 18/04/2013
Votação: UNANIMIDADE
Texto Parcial: S

Meio Processual: APELAÇÃO
Decisão: PARCIAL PROCEDÊNCIA I - Em matéria de responsabilidade civil, por ofensa do crédito e do bom nome, o ónus da prova cabe ao lesado, limitado à existência das imputações ofensivas dos bens em causa.
II - O facto de determinadas informações sobre a vida privada dos cidadãos suscitarem o interesse do público em termos fácticos, não significa que a sua divulgação seja de interesse público em termos normativos.
III - Não é de tal interesse normativo a urdidura de “factos”, insinuações, associações, juízos conclusivos e, ou, conjeturais, atribuindo ao A. uma personalidade doentia, da área não só da pedofilia como até da zooerastia, compatível com a prática de ilícito criminal relacionado com o desaparecimento de infortunada criança.
IV - O objetivo de aumento de tiragens não pode obnubilar os deveres jornalísticos, aliás de consagração estatutária, de respeito pela presunção de inocência, de não recolha de declarações ou imagens que atinjam a dignidade das pessoas, bem como de publicação de notícias que suscitem discriminação.
V - Na produção do mesmo dano podem comparticipar, por múltiplas formas, várias pessoas, e podendo a comparticipação verificar-se logo em relação à mesma causa do dano, ela “pode resultar ainda, não da colaboração na mesma causa do dano, mas da concorrência de duas ou mais causas.
VI - Nestas hipóteses de concurso real de causas do mesmo dano, em face do lesado, quer haja subsequência (adequada) de causas, quer haja causas cumulativas ou mera coincidência de causas de natureza distinta, qualquer dos responsáveis é obrigado a reparar todo o dano.
VII - A imputação ao diretor de uma publicação periódica, do conteúdo que resulta da própria titularidade e exercício da função e dos inerentes deveres de conhecimento, integra uma presunção legal.
VIII - Esta presunção legal isenta o autor-lesado do ónus da prova do facto, ou seja, o conhecimento, a aceitação e a imputação da publicação, por parte do diretor, a que a presunção conduz.
IX - O normativo do artigo 29º, n.º 2, da Lei da Imprensa, não determina como condição da efectivação da responsabilidade da proprietária da publicação, que o director da mesma seja demandado, conjuntamente com aquela.
(Sumário do Relator)
http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/8ae65886ef70827180257b63003d7a75?OpenDocument

This is the critical part of this document...in us law it is called libel per se and includes accusations of a criminal nature,which reverses the burden of proof...if portuguese law is the same then it is ammaral who has to prove...the truth is none of us know

[Mr Gray]

I believe that the source is accurate, yes. I don't think I'd be disappointed by an outcome that I haven't predicted. More than anything I'm interested in how people can have the same information and yet view it so differently.

It's almost a large social experiment. To put it bluntly, one 'side' is completely blinded by their own prejudices. I believe that it's those supporting the Mccanns who are wrong, they believe that it's me. I'll put my money on the table now and say that I trust the judge to make a decision based on the facts. I think that she'll make the right call and I won't complain about the outcome.

Everything I've seen leads me to believe that the Mccanns have no case. None. Their pretendy psychologist was proof of that. Now, other people who have seen the exact same information have come to the exact opposite conclusion. One of us is deluded. I'm genuinely curious to see which of us it is.

I'll also say that I completely trust Anne's documentation of events and if I have made the wrong call about the outcome, I accept that it is my own bias blinding me and no reflection on her work at all. I am very grateful for all of Anne's hard work! Thank you Anne.

I think you are wrong about the prejuduices...its simple understanding of the evidence...did the mccanna lie in their statements..I say no...did they lie about the shutters ...I say no....did the dogs prove a cadaver had been present..I say no...has their behavior since shown them to be guilty...no

then theres the fact theyve never been arrested and the ag report said there was no evidence they had committed any crime...

i was right about the ST article, when most on here accepted it ...and Im right about the Mccanns

[Eleanor]

This sounds possible since the accusations are of a Criminal Nature.

[Montclair]

This sounds possible since the accusations are of a Criminal Nature.

The McCanns filed a civil libel case not a criminal one because they were more interested in compensation.

As for the outcome, we can all say what we want right now but, as one Portuguese footballer said, "Prognósticos só no fim do jogo" (prognostics only at the end of the game). Although I hope that Gonçalo Amaral wins and I believe that the McCanns failed to prove their case, it could go either way, it all depends on the judge. According to people I know who attended the hearings in 2010 and these latest ones, this judge seems much more on her toes and knows the details of the case and the investigation.

If Gonçalo Amaral did not believe that he was right I doubt very much that he would have gone this far in the defense of freedom of speech and opinion.

[Mr Gray]

The McCanns filed a civil libel case not a criminal one because they were more interested in compensation.

As for the outcome, we can all say what we want right now but, as one Portuguese footballer said, "Prognósticos só no fim do jogo" (prognostics only at the end of the game). Although I hope that Gonçalo Amaral wins and I believe that the McCanns failed to prove their case, it could go either way, it all depends on the judge. According to people I know who attended the hearings in 2010 and these latest ones, this judge seems much more on her toes and knows the details of the case and the investigation.

If Gonçalo Amaral did not believe that he was right I doubt very much that he would have gone this far in the defense of freedom of speech and opinion.

 You have misunderstood...its a civil case but the libel accuses them  of a criminqal act..  does Portugal have similar laws to the US ie. libel per se...that's the question

[Eleanor]

The McCanns filed a civil libel case not a criminal one because they were more interested in compensation.

As for the outcome, we can all say what we want right now but, as one Portuguese footballer said, "Prognósticos só no fim do jogo" (prognostics only at the end of the game). Although I hope that Gonçalo Amaral wins and I believe that the McCanns failed to prove their case, it could go either way, it all depends on the judge. According to people I know who attended the hearings in 2010 and these latest ones, this judge seems much more on her toes and knows the details of the case and the investigation.

If Gonçalo Amaral did not believe that he was right I doubt very much that he would have gone this far in the defense of freedom of speech and opinion.

Thank you.  And I must say that this thought also crossed my mind, being Civil rather than Criminal.

Also thank you for your information being totally unbiased.

I expect that Amaral does believe that he is right.  But there is a large element of profit in what he has done.

The question is, did he have a right to do this?

[jassi]

Thank you.  And I must say that this thought also crossed my mind, being Civil rather than Criminal.

Also thank you for your information being totally unbiased.

I expect that Amaral does believe that he is right.  But there is a large element of profit in what he has done.

The question is, did he have a right to do this?

Do you mean moral or legal right?

[Eleanor]

Do you mean moral or legal right?

Legal, obviously.  Amaral's morals are actually none of my business.  Although he might look to his own morals before he starts questioning those of other people.

[Estuarine]

Am I missing something here? 'twas my understanding there are 4 defendants in this case although Amaral would seem to be presented as the bogey man in chief.