From the SC judgement Jan 2017
Page 69
It must be reminded that, in the present case, the issue isn't the appellants' penal liability, in other words their innocence or their guilt concerning the facts leading to the disappearance of her daughter doesn't have to be appreciated here.
What is in discussion here is merely the civil liability of the respondents, on the grounds that they have expressed and disclosed the above-mentioned thesis/opinion on the disappearance in question.
It follows that the outcome of the present case is not such as to call into question the extra-procedural dimension of the presumption of innocence.
This means that, even if the action does not proceed, it will not imply, even in the eyes of the community. any consideration of the appellants' liability, because such outcome will never will be able to be equated to an observation of respective culpability (cf. on this topic the judgements Del Latte vs Holland (n°44760/98) of 9/11/2004 and Cheena vs Belgium of 9/5/2016).
In addition, we are faced with a decision of filing by the Public Ministry which is subject to modification through various ways.
Thus, in addition to the recourse to the jurisdictional way, by opening the inquiry (see note p.21) (art. 287° of the CPP) and the complaint to the hierarchical superior (art. 278° of the CPP), the investigation can be reopened if new elements of evidence arise invalidating the grounds called upon by the Public Ministry in the filing dispatch (art. 279° of the CPP).
This is indeed even mentioned in the Note to the Social Communication released by the Attorney General's office on 21/7/2008 and announcing that the filing of the investigation had been decided. It was reported that it could be reopened on the initiative of the Public Ministry or at the request of any interested party if new elements of evidence arise triggering serious, pertinent and consequential proceedings (n°14 of the proven facts).
In this way, as the aforementioned filing order is not a judicial decision stricto senso, nor does it assume a definitive form, less would it be justified invoking the principle of the presumption of innocence to restrain freedom of expression.
And the safeguarding of the authority of the judicial power (cf. article 10°-2 of the European Convention on Human Rights) is not alluded to, since is definitely outdated the traditional idea that criticism against the judicial power must be proscribed as it contributes to the undermining of its dignity, authority and credibility in the long term. The best guarantee of dignity of all State institutions in the long run consists in its permanent opening to public criticism.
Page 70
...(cf. Jónatas Machado, Freedom of Expression - Constitutional Dimensions, op. cit. pp. 566-7)
And let not be said, too, that the appellants were cleared by the order of filing the criminal proceedings.
In fact, that dispatch was not proclaimed by virtue of the Public Ministry having gained the conviction that the appellants had not committed any crime (cf. art. 277° of the CPP).
The filing, in this case, was decided because it was not possible for Public Ministry to obtain sufficient evidence of the practice of crimes by the appellants (cf. the cited art. 277°-2)
There is, therefore, a remarkable difference, and not merely a semantic one, between the legally admissible grounds of the filing order.
Thus, it does not appear acceptable to consider that the alluded dispatch, based on the insufficiency of evidence, should be treated as evidence of innocence.
We consider, therefore, that the invocation of breach of the principle of presumption of innocence should not be upheld. That principle does not fall under the decision about the question that has to be resolved.
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IMO the SC contradicts its own reasoning for not breaching the principle of presumption of innocence & the role it played in Amaral's rights.
Thank you Misty. I can now see that the judges report did not contain the words you used;
"the SC referred to the McCanns not having demonstrated their innocence"
It seems that was your opinion of what they said, which is why cites are important.
The judges actually said;
Page 70
And let not be said, too, that the appellants were cleared by the order of filing the criminal proceedings.
They were referring to a specific claim by Duarte that the filing order cleared the McCanns;
Page 40
and already cleared before through the filing dispatch of a criminal investigation
Duarte made a claim and the judges examined it and rejected it. Any comments they made have to be understood in that context and no other.
The presumption of innocence, which was first raised in the first trial, was said to have been violated by Amaral. Not because of what he wrote and said, because;
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 (No. 9), it was an avenue pursued by the investigation (paragraphs 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 (paragraphs 65 and 66) .Page 34
http://miscarriageofjustice.co/index.php?topic=6307.0In other words, Amaral repeated what had already been said, he said nothing new. So the judge turned to the restrictions which, she argued, stopped Amaral from saying what was already known.
Putting it as clearly as I can she said he wasn't allowed full freedom of speech because he was a retired PJ Inspector. Judges, courts and officials must not use their knowledge of cases to accuse people because that could interfere with their right to a fair trial in any future proceedings by taking away the right to the presumption of innocence. .
The Appeal and Supreme Court judges all ruled that Amaral's freedom of speech was not restricted. Therefore he didn't break the rules or interfere with the right of the McCanns to the presumption of innocence.
It was the McCanns lawyer who subsequently tried to argue that the presumption of innocence was related to her client's right to a good name, etc. The judges also rejected that claim because the McCanns hadn't been deprived of that right at any stage of the investigation, and Amaral had enjoyed full freedom of speech because he had not used privileged information; it was already in the public domain before he said anything.
The arguments are spread over eight years and are complex. I hope I've managed to clarify why and in what context certain things were discussed.
