Former Portuguese detective Gonçalo Amaral wins appeal in damages trial.

[jassi]

Portugal uses civil law.

(Contrary to your claim) so does England.

No, they are not the same.

I think you are just being deliberately obtuse.

[Jean-Pierre]

Arrrhhhh. DIFFERENT FROM COMMON LAW You quoted a common law principle not applicable in Portugal, because their system is based on civil law.

Just as a matter of interest is anyone else unable to understand what I'm saying?

I think maybe it needs to be simplified a bit.  All jurisdictions draw a distinction between criminal law (self explanatory really) and civil law (disputes, property, defamation, family etc).

Then there are two different systems. 

Common law - based on the principle of precedent where a decision by a court is binding on all lower courts for similar fact cases. This can be modified by an equitable (parliament) remedy where the common law produces unfair decisions.

Codified - used in continental Europe and based on Roman law.  All law is governed by statute and precedent does not apply. 

So you have, in England, civil and criminal law both based on the common law.

In Europe you have civil and criminal law based on a codified Roman law.

Before anyone starts nitpicking there are anomalies such as criminal defamation, and there is the tension between English and EU law, so there are shades of grey. At least 50

[slartibartfast]

I think maybe it needs to be simplified a bit.  All jurisdictions draw a distinction between criminal law (self explanatory really) and civil law (disputes, property, defamation, family etc).

Then there are two different systems. 

Common law - based on the principle of precedent where a decision by a court is binding on all lower courts for similar fact cases. This can be modified by an equitable (parliament) remedy where the common law produces unfair decisions.

Codified - used in continental Europe and based on Roman law.  All law is governed by statute and precedent does not apply. 

So you have, in England, civil and criminal law both based on the common law.

In Europe you have civil and criminal law based on a codified Roman law.

Before anyone starts nitpicking there are anomalies such as criminal defamation, and there is the tension between English and EU law, so there are shades of grey. At least 50

Good post, thanks.

[John]

I think maybe it needs to be simplified a bit.  All jurisdictions draw a distinction between criminal law (self explanatory really) and civil law (disputes, property, defamation, family etc).

Then there are two different systems. 

Common law - based on the principle of precedent where a decision by a court is binding on all lower courts for similar fact cases. This can be modified by an equitable (parliament) remedy where the common law produces unfair decisions.

Codified - used in continental Europe and based on Roman law.  All law is governed by statute and precedent does not apply. 

So you have, in England, civil and criminal law both based on the common law.

In Europe you have civil and criminal law based on a codified Roman law.

Before anyone starts nitpicking there are anomalies such as criminal defamation, and there is the tension between English and EU law, so there are shades of grey. At least 50

Some members make the mistake of attempting to compare English Law with Portuguese Law.  Just like the language, there simply are some words which do not translate.

[Jean-Pierre]

Some members make the mistake of attempting to compare English Law with Portuguese Law.  Just like the language, there simply are some words which do not translate.

The general principles and objectives are similar, John.  It is really only the details that are different.  It stems from a fundamental principle that in English law everything is permitted except that which is forbidden and in continental systems everything is forbidden except that which is permitted.  Once that is understood it all makes more sense

[ferryman]

The basis of the appeal (courtesy of Leonard Port):

The lawyer for Kate and Gerry McCann has filed an appeal in Portugal’s Supreme Court following last month’s Appellate Court decision in favour of Gonçalo Amaral.
This is the latest move in the long-running civil action over the former lead detective’s controversial book about Madeleine McCann’s disappearance in 2007.
The court last month overturned an earlier decision to award half-a-million euros in damages to the McCanns. The Supreme Court review is expected to focus mainly on legal aspects of the case rather than material issues.
The lifting of both the damages ruling and the ban on further publication of the book was seen as a highly significant decision within traditional areas of conflict: the right to honour and privacy on the one hand, and to freedom of expression and opinion on the other.
Freedom of expression is a fundamental right enshrined in the Portuguese constitution that applies to every citizen, but it comes with certain constraints.
While everyone has a right to express and to publicise their thoughts in words, image or by any other means, the constitution also states that everyone has a right to a good name and reputation and to the protection of the intimacy of private and family life.
The media have the right - indeed it is their social function - to spread news and give critical or non-critical opinions. It is important that they do so with respect for the truth and for the intangible rights of others, said the three appeal judges in this case last month.
Amaral, in his book “The Truth of the Lie”, not only included facts that were evidence in the inquiry into the disappearance of Madeleine McCann, but aired his opinion that Madeleine was not abducted. He suggested that she died accidentally and that her parents covered this up by concealing her body and making up a false story.
The facts of the case in the form of evidence in police files had already been widely published in newspapers and on the internet as a result of an initiative by the office of Portugal’s prosecutor general. Amaral had the legitimate right to describe and interpret these facts.
The allegation expressed in his book that the McCanns were involved in a cover-up was not new either. It was already in the public domain as it was contained in the police files and was the basis upon which the couple had been declared official suspects, or “arguidos”, in the original investigation.
The judges indicated that the McCanns had voluntarily limited their rights to privacy by making themselves available to the national and international media to which they had easy access. In effect, they opened the way for anyone to debate and express opinions about the case, including opinions that contradicted their own.
In essence, the appeal judges ruled that the McCanns' rights had not been infringed and that Amaral’s book was a lawful example of freedom of expression.
Many observers would argue that the lawsuit instigated by the McCanns seven years ago is turning out to be more harmful and costly to them than the defendants. It has inadvertently generated publicity of a kind they least wanted and boosted book sales, but they have instructed their Lisbon lawyer, Isabel Duarte, to continue to the highest level.
Even that may not be the end of this dispute. Amaral is considering turning tables and suing the McCanns for damages.

By LEN PORT

- See more at: http://portugalresident.com/mccanns-appealing-to-supreme-court-privacy-versus-freedom-of-expression#sthash.VaSLpBYR.dpuf

[G-Unit]

The basis of the appeal (courtesy of Leonard Port):

The basis of what appeal? It mostly seems to be about the findings of the Appeal Court.

[jassi]

"The Supreme Court review is expected to focus mainly on legal aspects of the case rather than material issues."

There seems to be no mention of what these legal aspects - ie points of law - are as far as I can see.

[ferryman]

I would be astounded if Isabel revealed the basis of the appeal to Len ....

[Carana]

Presumption of innocence might be one...

[ferryman]

Presumption of innocence might be one...

Accountability (if not direct responsibility) for leaks from the enquiry might be another ....

And (I still reckon) there's a basis for pinning this Gerry not Madeleine's father leak on Amaral.

We'll see.

[ferryman]

The general principles and objectives are similar, John.  It is really only the details that are different.  It stems from a fundamental principle that in English law everything is permitted except that which is forbidden and in continental systems everything is forbidden except that which is permitted.  Once that is understood it all makes more sense

See, taking that as literal, we know that, Portugal, it is not permitted to slay reputation with lies.

[John]

See, taking that as literal, we know that, Portugal, it is not permitted to slay reputation with lies.

Thing is though, only Madeleine's abductor (if such exists) knows what is a lie and what is the truth. 

Amaral doesn't even know the answer to this, he has a thesis based on the evidence the PJ collected. Under Portuguese Law he is entitled to espouse that thesis. Until such time as Madeleine's fate is known it is incorrect to accuse anyone of telling lies in this case unless we have evidence to the contrary.

[Carana]

Accountability (if not direct responsibility) for leaks from the enquiry might be another ....

And (I still reckon) there's a basis for pinning this Gerry not Madeleine's father leak on Amaral.

We'll see.

Don't think so, FM.

a) Journalists' sources are protected.

b) The fact that that happened under his watch (as did many other garbled leaks) can't be directly attributable to him.

c) Even if CCTV images were to appear showing him handing over any particular document to waiting tabloids (which will never happen), it would be a separate matter, and would come under penal law.

[Carana]

Thing is though, only Madeleine's abductor (if such exists) knows what is a lie and what is the truth. 

Amaral doesn't even know the answer to this, he has a thesis based on the evidence the PJ collected. Under Portuguese Law he is entitled to espouse that thesis. Until such time as Madeleine's fate is known it is incorrect to accuse anyone of telling lies in this case unless we have evidence to the contrary.

In the meantime, what is your opinion of former police head honchos insisting that your missing child is dead and accusing you at every (lucrative) opportunity of criminal activity?