McCanns appeal to the European Court of Human Rights

[Robittybob1]

It would seem that in Portugal at least that is precisely what any ex-cop could do.  Trial by paperback.

Well, maybe that is preferred for foreigners.  One advantage, that I see, is that the cost of housing the offenders is not on the taxpayers.  Plus the foreign exchange brought in from the book sales keeps the country afloat.
And besides, the country can basically ignore any adverse finding by the ECHR.

[Mr Gray]

Article 8 wasn't used in the national case so can't be raised in the application to the ECHR imo.

What do you mean it wasn't used... The case concerned the right to reputation.. That's covered by article 8

[G-Unit]

What do you mean it wasn't used... The case concerned the right to reputation.. That's covered by article 8

It was never quoted, so cannot be raised. Only Articles 10 and 6 were quoted in the case.

[Mr Gray]

Article 8 wasn't used in the national case so can't be raised in the application to the ECHR imo.

Page 50
... harmonization of the various rights) and in the European Convention on Human Rights
(art.8° and 10°).

[Mr Gray]

It was never quoted, so cannot be raised. Only Articles 10 and 6 were quoted in the case.

As long as the point is raised in substance that's all that matters... Not my opinion.. Fact

[G-Unit]

As long as the point is raised in substance that's all that matters... Not my opinion.. Fact

This is what suggests to me that violations of Article 8 can't be included in an application to the ECHR unless it was mentioned at first instance, which it wasn't in my opinion. I found mention only of Articles 6 and 10.

"The principle of subsidiarity requires that national courts must have the opportunity to prevent, detect
and redress the alleged violation(s) themselves. If they fail to provide redress, an application may be made to
the Court. Violations of Articles of the Convention must be pleaded substantively at first instance, with specific
reference to the applicable Convention Articles. It is essential to plead those same Convention arguments on
appeal, then to the highest national court, or any other constitutional court or court of cassation which acts as a
court of last resort."
https://www.echr.coe.int/Documents/Q_A_Lawyers_Guide_ECHR_ENG.pdf

[misty]

This is what suggests to me that violations of Article 8 can't be included in an application to the ECHR unless it was mentioned at first instance, which it wasn't in my opinion. I found mention only of Articles 6 and 10.

"The principle of subsidiarity requires that national courts must have the opportunity to prevent, detect
and redress the alleged violation(s) themselves. If they fail to provide redress, an application may be made to
the Court. Violations of Articles of the Convention must be pleaded substantively at first instance, with specific
reference to the applicable Convention Articles. It is essential to plead those same Convention arguments on
appeal, then to the highest national court, or any other constitutional court or court of cassation which acts as a
court of last resort."
https://www.echr.coe.int/Documents/Q_A_Lawyers_Guide_ECHR_ENG.pdf

I was under the impression the violations of the convention had been successfully argued in the first instance court, where the McCanns were awarded damages and the judge banned Amaral's book & the documentary. It's important to remember that Amaral, not the McCanns, was the person who appealed against the first decision.

[faithlilly]

I was under the impression the violations of the convention had been successfully argued in the first instance court, where the McCanns were awarded damages and the judge banned Amaral's book & the documentary. It's important to remember that Amaral, not the McCanns, was the person who appealed against the first decision.

But the parents applied to the Supreme Court and it’s their lack of redress, as they see it,  there that allowed them to make an application to the ECHR.

All previous decisions, IMO, are unimportant at this point.

[misty]

But the parents applied to the Supreme Court and it’s their lack of redress, as they see it,  there that allowed them to make an application to the ECHR.

All previous decisions, IMO, are unimportant at this point.

They're not, according to G-Unit, although it's apparent from the various judgements that decisions were reached after consideration & reference to the rights afforded by Articles 8 & 10 of the Convention.

[faithlilly]

They're not, according to G-Unit, although it's apparent from the various judgements that decisions were reached after consideration & reference to the rights afforded by Articles 8 & 10 of the Convention.

Time will tell I suppose.

[Mr Gray]

https://www.google.com/search?q=echr+admissibility+requirements&oq=admissibility+echr&aqs=chrome.3.69i57j0i22i30l4.11638j1j7&client=ms-android-huawei-rev1&sourceid=chrome-mobile&ie=UTF-8

Complaint raised in substance
87. It is not necessary for the Convention right to be explicitly raised in domestic proceedings
provided that the complaint is raised “at least in substance” (Castells v. Spain, § 32; Ahmet Sadik
v. Greece, § 33; Fressoz and Roire v. France [GC], § 38; Azinas v. Cyprus [GC], §§ 40-41;

Page 26 of this document from the ECHR explains the point..
It is sufficient for the point to be raised in substance as it was in the first instance. No need for the article number to be quoted

[Mr Gray]

It was never quoted, so cannot be raised. Only Articles 10 and 6 were quoted in the case.

It can be raised as confirmed by the link I have provided. the important point being taht the domestic court has had the opprtunity to deal with the issue.

There can be no doubt portugal was aware and has addressed the issue of right to reputation vs free speech

[G-Unit]

I was under the impression the violations of the convention had been successfully argued in the first instance court, where the McCanns were awarded damages and the judge banned Amaral's book & the documentary. It's important to remember that Amaral, not the McCanns, was the person who appealed against the first decision.

The points raised by Amaral in his appeal were;

That the reserve attached to his previous occupation could not be used as the first judge did, to limit his right to freedom of expression.

That the McCanns themselves abandoned their right to privacy, image and reputation by interacting with the media, making them and the case famous around the world and opening the door to discussion of the case, including opinions opposed to their own.

That the McCann's right to be treated correctly in judicial processes could not be damaged by releasing details of the facts of the investigation as they had been released by the Public Prosecutor.

That the McCanns failed to show a causal link between his conduct and the damages they claimed to have suffered. In fact everything they described they felt after the book, the DVD and the interview they had already been feeling before that, due to the disappearance of their daughter.

[kizzy]

Surely this is an example of how can a book cause more distress than losing a daughter.

All the symptoms they describe is what you would expect from the parents of a missing child.


Page 39
81. As a result of the defendant Gonçalo Amaral's statements in the book, the documentary and interview with the CdM, the claimants Kate and Gerald McCann felt anger, despair, anguish, worry, and were suffering insomnia and lack of appetite (n°13)

[Venturi Swirl]

Surely this is an example of how can a book cause more distress than losing a daughter.

All the symptoms they describe is what you would expect from the parents of a missing child.


Page 39
81. As a result of the defendant Gonçalo Amaral's statements in the book, the documentary and interview with the CdM, the claimants Kate and Gerald McCann felt anger, despair, anguish, worry, and were suffering insomnia and lack of appetite (n°13)

No.  It's an example of how a book can add to the distress and anguish of parents who are already suffering from the loss of their child.