Page 17... according to people's memory, values which must be preserved as the rights here at stake to honour, good name and social reputation. (ruling of the STJ dated 20/01/2010,
www.dgsi.pt)
In the case before us, besides the reporting of the facts that are part of the investigation into the disappearance of the minor Madeleine McCann, the analysis of the book and other published matter shows that the now first appellant sustains the thesis that there was no kidnapping, but accidental death of the child, followed by a cover-up - concealment of the body and kidnapping simulation – by the applicants Gerald and Kate McCann, now the respondent party .
It results from the above-mentioned publication that evidence elements and clues it reports to are essentially those referred and documented in the respective criminal investigation.
Not withstanding, the exposed thesis, according to which the minor died accidentally and the parents hid the fact, spreading the kidnapping hypothesis in order to deceive, is not new, since it is also in the report referred to at n° 9 of the proven facts, having determined the constitution of the respondent party as arguidos and having been made public by the media after the digitalisation of the investigation files was provided ( n°s 65 and 66 of the proven facts).
As determined by the appeal ruling heard in this section regarding the appended injunction, the first appellant intended through (his book) to outline his vision of the facts, once the institution to which he belonged (the PJ) did not allow him, as a professional police officer in a criminal investigation, to respond to attacks against its expertise and honour. We must therefore consider the publication of the book as reflecting the legitimate exercise of the right to opinion.
And it results from what has been proven that, besides the facts at stake were abundantly engraved in the investigation and even made public at the instigation of the Republic Attorney General, the respondents are the ones who, taking advantage of an easy access, multiplied interviews and interventions in the national and international media, so that the conclusion is they themselves voluntarily limited their rights to discretion and intimacy of private life.
By this kind of proceeding, they opened the way for anyone to equally express their view on the case, contradicting their theory – without doing anything but practicing...
Page 18… a lawful and constitutionally sanctioned right to opinion and freedom of expression of their thoughts.
Moreover, we do not see how the right of the respondents to enjoy, after their constitution as “arguidos", the guarantees of a criminal trial – including the right to a fair investigation and the right to liberty and security - could be affected by the content of a book that essentially describes and interprets facts that are part of an investigation the contents of which have been made public.
Although they were not considered sufficient to elicit criminal charges, nothing prevents such facts of being subject to various assessments, especially in a literary kind of work.
Therefore, and as rights are enshrined namely in articles 37° and 38° of the CRP, the publication in question has to be considered legitimate.
The appealed decision, however, reckons that the first (here) appellant, Gonçalo Amaral, because he coordinated the criminal investigation into the disappearance of Madeleine McCann until 2/10/2007, remained, even after his retirement on 1/07/2008, subject to the duties of silence and reserve, regularly imposed on officers of the Judicial Police in activity.
Under such terms, and despite the personal reasons given in the prologue of the book, the appellant, in case of collision with the rights to good name and reputation of the respondents, would not enjoy the full and complete freedom of expression concerning the investigation's conclusions, his conduct being deemed unlawful under Article 484° of the CC.
From what has been said above on this subject, it is clear that the expounded arguments are not worth considering.
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.
In the absence of the appealed decision's first presupposition, it must be concluded, against it, to the lack of eligibility of any of the respondent party's demands - remaining without effect the re-assessment of the material facts, secondarily requested
Page 19Both claimants (here appellants) lodged an appeal for reviewing that acórdão (note : to avoid confusion, this word always designates the decision of the Appeal Court).
Provided allegations and gathered the legal visas, it's up to deciding.
2 – Fundamental principles
1.2. In the appealed acórdão the following facts are considered proven :1. The applicants Gerald McCann and Kate (sic) are married to each other.
2. The applicant Madeleine McCann was born on 12.5.2003 , daughter of Kate McCann and Gerald McCann.
3. The applicant Sean McCann was born on 1/2/2005, son of Kate McCann and Gerald McCann.
4. The applicant Amelie McCann was born on 1/2/2005 , daughter of Kate McCann and Gerald McCann.
5. The applicant Madeleine McCann has been missing since 3/5/2007 , resulting in the criminal investigation n° 201/07.0 GALGS, opened by the prosecutor of Portimão.
6. The dogs Eddie and Keela, from the British police, have detected human blood and cadaver scent in the apartment 5A of the Ocean Club.
7. The dogs Eddie and Keela, from the British police, have detected human blood and cadaver scent in the vehicle rented by the applicants Kate McCann and Gerald McCann after Madeleine's disappearance.
8. The applicants Kate McCann and Gerald McCann were constituted (by lawyer) assisted witnesses (arguidos) in the criminal investigation.
9. On 10/9/2007 (pp. 2587-2602 of the criminal investigation), Chief-Inspector Tavares de Almeida wrote a report and particularly the following :
"Given what we could establish, the facts point towards the death of Madeleine McCann during the evening of May 3 2007, in the apartment 5A of Praia da Luz Ocean Club resort, occupied by the McCann couple and their three children (p. 2599) (... )
Taking into account all that was presented in the autos, it results that :
A) The minor Madeleine McCann died in apartment 5A of the Ocean Club in Praia da Luz in the evening of May 3, 2007 ;
B) A simulation of abduction took place ;
Page 20C) In order to make possible the death of the minor before 22h, a story about checking on the McCann children, as they slept, was invented ;
D) Kate and Gerald McCann are involved in the concealment of the body of their daughter MMC;
E) On this date it seems there is no solid evidence that the death of the minor was not due to a tragic accident;
F) Given what has been confirmed so far, everything indicates that the couple McCann, as self-defence, does not want to deliver immediately and voluntarily the body, existing a high probability 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 minutes be delivered to the prosecutor of Lagos aiming :
G) A possible new interrogation of assisted witnesses Kate McCann and Gerald McCann ;
H) Evaluating the adequate measure of constraint to be applied in the case (folio 2601 of the minutes)" (al.AT).
10. On 10/9/2007 (p. 2680 of the criminal investigation), the prosecutor in charge of the investigation issued an order which in particular 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 requested inquiries are essential for the discovery of the truth, especially the analysis of the information contained in the telephone exchanges' ...