Author Topic: McCanns v Goncalo Amaral - Supreme Court Judgement 31 Jan 2017 - colour coded.  (Read 830 times)

0 Members and 1 Guest are viewing this topic.

Online Robittybob1

Using G-unit as a start colour the text depending on the source and purpose.
"... assessment of the contents;
Pages 1 and part of 2 Introduction green
Pages 2 - 40 Taken from the first judgement. Red
Pages 40(2.2) - 44 Duartes arguments. Blue
Pages 45(2.3) - 48 Guerra & Paz response. Brown
Page 48 onwards; the judge's findings.  Black

One page per post.

McCanns v Goncalo Amaral: Supreme Court Judgement 31 Jan 2017

Translation by Anne Guedes
Original Judgement courtesy PJGA


« Last Edit: March 05, 2017, 10:53:51 AM by John »
What are you doing to find Madeleine?

Online Robittybob1

McCanns v Goncalo Amaral: Supreme Court Judgement 31 Jan 2017

Translation by Anne Guedes
Original Judgement courtesy PJGA


In the Supreme Court of Justice

1 - Report

Page 1
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 The Portuguese Civil Code (CC) 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.
« Last Edit: March 04, 2017, 10:54:26 AM by Robittybob1 »
What are you doing to find Madeleine?

Online Robittybob1

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…
« Last Edit: March 04, 2017, 10:56:54 AM by Robittybob1 »
What are you doing to find Madeleine?

Online Robittybob1

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 the 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 Correio da Manhã (CdM) 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).
« Last Edit: March 03, 2017, 05:58:29 PM by Robittybob1 »
What are you doing to find Madeleine?

Online Robittybob1

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) .

 
What are you doing to find Madeleine?

Online Robittybob1

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), 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..
What are you doing to find Madeleine?

Online Robittybob1

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 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 ( ... )"
What are you doing to find Madeleine?

Online Robittybob1

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...
What are you doing to find Madeleine?

Online Robittybob1

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 Supreme Court of Justice (STJ) Rulings of February 14 2002 and March 7 2002 reported in reviews n° 3379/01 and 184/02, of the 1st and 7th sections].
What are you doing to find Madeleine?

Online Robittybob1

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...
What are you doing to find Madeleine?

Online Robittybob1

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, …
What are you doing to find Madeleine?

Online Robittybob1

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...
What are you doing to find Madeleine?

Online Robittybob1

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].
 
Note 08    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.
 
What are you doing to find Madeleine?

Online Robittybob1

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).
« Last Edit: March 05, 2017, 10:13:45 AM by Robittybob1 »
What are you doing to find Madeleine?

Online Robittybob1

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.
« Last Edit: March 05, 2017, 10:14:57 AM by Robittybob1 »
What are you doing to find Madeleine?