Duty of Reserve.

[Robittybob1]

What does it mean?

"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 others. Having been in charge of that investigation as a member of the Judicial Police, the defendant Goncalo Amaral, although retired on 1st July 2008, did not enjoy, on the following July 24, in respect of the results of the criminal investigation released on the 21st of the same month and year, a large and full freedom of expression. This freedom was conditioned by the functions he had, functions that imposed him special duties that traverse the status of retirement, including the duty of reserve."
http://miscarriageofjustice.co/index.php?topic=6307.msg239353#msg239353 page 44.

"According to the Court, the presumption of innocence “will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty”, Daktaras v. Lithuania, no. 42095/98, § 41, 10 October 2000."  Council of Europe
Human Rights and Rule of Law https://wcd.coe.int/ViewDoc.jsp?p=&id=2119409&Site=COE&direct=true


That seems to be damming to Amaral.  It appears McCanns presumption of innocence was violated.

49

[John]

Extract from page 42

"Alongside this general duty of confidentiality, the organic law 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 planned in this law about public information and preventive actions concerning the population and also the provisions of the criminal procedure law [paragraph 2 of article 12].
 
Even so the admissible statements (…) 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 [paragraph 3 of article 12].

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 paragraph 7 of article 148 of the Statute that retired judges must respect the reserve required by their condition.

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."

[ferryman]

What does it mean?

"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 others. Having been in charge of that investigation as a member of the Judicial Police, the defendant Goncalo Amaral, although retired on 1st July 2008, did not enjoy, on the following July 24, in respect of the results of the criminal investigation released on the 21st of the same month and year, a large and full freedom of expression. This freedom was conditioned by the functions he had, functions that imposed him special duties that traverse the status of retirement, including the duty of reserve."
http://miscarriageofjustice.co/index.php?topic=6307.msg239353#msg239353 page 44.

"According to the Court, the presumption of innocence “will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty”, Daktaras v. Lithuania, no. 42095/98, § 41, 10 October 2000."  Council of Europe
Human Rights and Rule of Law https://wcd.coe.int/ViewDoc.jsp?p=&id=2119409&Site=COE&direct=true


That seems to be damming to Amaral.  It appears McCanns presumption of innocence was violated.

Dunno!

But:

"According to the Court, the presumption of innocence “will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law.

The McCanns were never charged.

[John]

At first glance and in simple terms the duty of reserve prevents former public servants from putting into the public domain any information which the Ministry hasn't previously ever published.  Since the Court latterly agreed that Amaral's book was based on the Archive then it cannot be argued that he was in breach of the duty of reserve.

[Robittybob1]

......

The McCanns were never charged.

Read on a bit, you'll see it was not required that they were charged .... "It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty." 

I think you will see that this second bit covers the McCann -  Amaral (the official) clearly regarded the accused (the former Arguidos, the McCanns) as guilty.

[John]

Read on a bit, you'll see it was required that thy were charged .... "It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty." 

I think you will see that this second bit covers the McCann -  Amaral clearly regarded the accused (the McCanns) as guilty.

I think most people have worked that out by now Rob.  Question is though, what of?

[Robittybob1]

At first glance and in simple terms the duty of reserve prevents former public servants from putting into the public domain any information which the Ministry hasn't previously never published.  Since the Court latterly agreed that Amaral's book was based on the Archive then it cannot be argued that he was in breach of the duty of reserve.

The coordination between the release of the book, the archiving of the case and the release of the files seems too coincidental to me.  I would not be surprised if there was not a type of conspiracy being acted out behind the scenes to get all of this happening, and the whole thing viewed as payback to the McCanns for embarrassing  the Portuguese Police with all their publicity.

I expect this post will be deleted but I have been longing to state my thesis in this time of freedom of expression.

[Robittybob1]

I think most people have worked that out by now Rob.  Question is though, what of?

I don't think it matters.  The officials are not to publicly insinuate anyone is guilty of a crime that they haven't yet been found guilty of by a Court of Law.

They can be investigated, charged, arrested and locked up, but all the time the presumption of innocence  and the duty of reserve must remain.

It would not even be important if they were found ultimately guilty of the crime, the presumption of innocence  and the duty of reserve must remain in place till the guilty verdict is reached.

[Alice Purjorick]

The coordination between the release of the book, the archiving of the case and the release of the files seems too coincidental to me.  I would not be surprised if there was not a type of conspiracy being acted out behind the scenes to get all of this happening, and the whole thing viewed as payback to the McCanns for embarrassing  the Portuguese Police with all their publicity.

I expect this post will be deleted but I have been longing to state my thesis in this time of freedom of expression.

1. That is obvious in my estimation. But not for any ulterior motive other than to keep within the rules. I expect the original judgement threw them a bit of a wobbler though.
2. That is highly unlikely in my estimation

[Robittybob1]

1. That is obvious in my estimation. But not for any ulterior motive other than to keep within the rules. I expect the original judgement threw them a bit of a wobbler though.
2. That is highly unlikely in my estimation

I like your use of colour coding. 
How often are the police files released in the Portugal.  Here in NZ it never happens officially.  I got hold of the police files of a case but it was a bit like Wikileaks where people went through illegal means to release them to friends first and then to researchers.  But it definitely wasn't released to the public.

Why do you say "the original judgement threw them a bit of a wobbler"?

[Robittybob1]

Page 13
SC Judgement.
"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).

[Robittybob1]

Page 15 http://www.gerrymccannsblogs.co.uk/Supreme_Court_31_01_2017.htm
Having been in charge of that investigation as a member of the Judicial Police, the defendant Gonçalo Amaral, although retired on July 1 2008, did not enjoy, on the following July 24, in respect of the outcome of the criminal investigation released on the 21st of the same month and year, a large and full freedom of expression.

This freedom was conditioned by the functions he had, functions that imposed him special duties that traverse the status of retirement, including the duty of reserve.

In this concrete situation, despite the personal reasons that the defendant invokes in the introductory note of the book, the freedom of expression should cede through the imperative of that reserve.

It was not what happened and the truth is that, on July 24 2008, scant three days after the release of the dispatch shelving the investigation for lack of proof, the book was launched, sold with the newspaper’s edition, and the interview was published.

The time-line displays well the intention to call for the contradictory, in the public domain, the shelving of the investigation, comparing it with the thesis of the previous line of investigation, told as the true one by a person who had been responsible for the same investigation.

In this form of resolving the conflict between the rights is revealed the illegality of the conduct of the defendant Gonçalo Amaral in respect of the effects of article 484° of the CC.

In disagreement with this judgement, the defendants 1°, 2° and 3° (10) lodged an appeal against it.

The Lisbon Appeal Court granted those requests and revoked the appealed decision, judging the lawsuit unfounded concerning the appellants and acquitting them of all the requests. Their allegations were expressed in the following way :

In terms of personality rights, article 26°-1 of the CRP states that the rights to a person’s good name and reputation are recognised, as well as protection of the intimacy of private and family life..

The same fundamental law protects with equal dignity freedom of expression, stating in article 37°-1 that everyone has the right to freely express and disclose their thought...

[Mr Gray]

Page 13
SC Judgement.
"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).

It seems the initial judgement recognised this but the SC ruled that amaral was above the law and could do anything he liked..... it's how some states view their police officers

[Robittybob1]

"Indeed, irrespective of the reasons given by the appellant for publication, it is 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."
Page 18.

[Robittybob1]

This is an important section:
"2.4. It can be verified that the divergence found in the decisions of the instances consists essentially in the following :

- the first instance found that the defendant Gonçalo Amaral, for having been responsible for the criminal investigation as a member of the PJ, although, meanwhile, he retired, couldn't enjoy full and complete freedom of expression, since the functions he was in charge of  imposed on him, in particular, the reserve duty, wherefore that freedom having to yield to this duty, his conduct was unlawful in virtue of the art. 484°of the CC.

- the second instance took the view that this argumentation could not be upheld, inasmuch "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", imposing himself to consider the publication of the book in question as revealing the legitimate exercise of right to opinion."
Page 47
Page 48
this is rather interesting - why?
"The appellants, in the conclusion of their claim for review, despite alluding to their claim to have the sentence of the first instance reinstated, did not make any express reference to the question of the alleged reserve duty of the defendant Gonçalo Amaral, to which, according the same judgement, freedom of speech should give in, which constitutes the cornerstone of the entire construction leading to the conclusion that the conduct of that defendant was illicit, by virtue of art.44° of the CC."

Art 44 of CC is to do with business so I don't see how it relates to the case!
"  Article 44
(Enrichment without cause)
Unjust enrichment is governed by the law on the basis of which the transfer of the book value to the enriched was verified."

It may just be a typo for 484 " 
Article 484
(Offense of credit or good name)
Anyone who asserts or divulges a fact capable of prejudicing the credit or good name of any person, whether natural or legal, shall be liable for the damages caused."

Which is highly relevant to the case.