Author Topic: McCanns v Goncalo Amaral - Supreme Court Judgement 31 Jan 2017  (Read 1150 times)

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Online John

Re: McCanns v Goncalo Amaral - Supreme Court Judgement
« Reply #15 on: February 13, 2017, 01:01:39 AM »
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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… 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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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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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.
« Last Edit: February 20, 2017, 03:22:32 PM by John »
A malicious prosecution for a crime which never existed. John Lamberton exposes malfeasance by public officials.
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Re: McCanns v Goncalo Amaral - Supreme Court Judgement
« Reply #16 on: February 13, 2017, 01:05:30 AM »
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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… 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, ...
« Last Edit: February 20, 2017, 03:23:34 PM by John »
A malicious prosecution for a crime which never existed. John Lamberton exposes malfeasance by public officials.
Check out my website >   http://johnlamberton.webs.com/index.htm?no_redirect=true     The truth never changes with the passage of time.

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Re: McCanns v Goncalo Amaral - Supreme Court Judgement
« Reply #17 on: February 13, 2017, 01:14:13 AM »
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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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. Note*

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*  animus injuriandi (intention to offend) vs  animus informandi (intention to inform) and animus defendendi (intention to defend).
 
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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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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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...(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...
« Last Edit: February 20, 2017, 03:25:45 PM by John »
A malicious prosecution for a crime which never existed. John Lamberton exposes malfeasance by public officials.
Check out my website >   http://johnlamberton.webs.com/index.htm?no_redirect=true     The truth never changes with the passage of time.

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Re: McCanns v Goncalo Amaral - Supreme Court Judgement
« Reply #18 on: February 13, 2017, 01:17:55 AM »
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.
 
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), ...
 
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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… 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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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.
« Last Edit: February 20, 2017, 03:26:45 PM by John »
A malicious prosecution for a crime which never existed. John Lamberton exposes malfeasance by public officials.
Check out my website >   http://johnlamberton.webs.com/index.htm?no_redirect=true     The truth never changes with the passage of time.

Online Robittybob1

Re: McCanns v Goncalo Amaral - Supreme Court Judgement 31 Jan 2017
« Reply #19 on: February 13, 2017, 01:59:12 AM »
Is it possible to colour code it so it is easier to see what is happening?

What are you doing to find Madeleine?

Offline Angelo222

Re: McCanns v Goncalo Amaral - Supreme Court Judgement 31 Jan 2017
« Reply #20 on: February 13, 2017, 05:46:02 PM »
Is it possible to colour code it so it is easier to see what is happening?

I'm all for adding a bit of colour but what do you mean Robbie?
De troothe has the annoying habit of coming to the surface just when you least expect it!!

Je ne regrette rien!!

Offline misty

Re: McCanns v Goncalo Amaral - Supreme Court Judgement 31 Jan 2017
« Reply #21 on: February 13, 2017, 10:03:10 PM »
It would be helpful to know which parts of the judgement are comments made by Appeal/Supreme Court judges & which are part of the first judgement.

Online Robittybob1

Re: McCanns v Goncalo Amaral - Supreme Court Judgement 31 Jan 2017
« Reply #22 on: February 20, 2017, 10:39:44 AM »
I'm all for adding a bit of colour but what do you mean Robbie?
I was just wondering if the various sections couldn't be displayed in different coloured text.  Words of the SC judges in one colour.  old judgements in a different colour.  Known fact in another colour etc etc.
What are you doing to find Madeleine?

Online John

Re: McCanns v Goncalo Amaral - Supreme Court Judgement 31 Jan 2017
« Reply #23 on: February 20, 2017, 03:28:35 PM »
Please note that some minor edits have been made to the Judgement in English.
A malicious prosecution for a crime which never existed. John Lamberton exposes malfeasance by public officials.
Check out my website >   http://johnlamberton.webs.com/index.htm?no_redirect=true     The truth never changes with the passage of time.

Online G-Unit

Re: McCanns v Goncalo Amaral - Supreme Court Judgement 31 Jan 2017
« Reply #24 on: February 24, 2017, 07:59:46 AM »
My assessment of the contents;

Pages 1-39/40 Taken from the first judgement.
Pages 40, 2.2-44 Duartes arguments.
Pages 45, 2.3-48 Guerra & Paz response.
Page 48 onwards; the judges findings.
Accept nothing
Believe no-one
Confirm everything