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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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… 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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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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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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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, ...