https://globalfreedomofexpression.columbia.edu/cases/bedat-v-switzerland/I am highlighting the two sections below from the ECHR Grand Chamber in the Bedat case as they can equally be applied to the McCann case..
(2) The content of the impugned article
In considering the content of the publication, the Court gave deference to the findings of the Swiss Federal Court that the manner in which he quoted the correspondence between the accused and the investigating judge showed his motive of “satisfying the relatively unhealthy curiosity.” By considering the headings of the article, such as “Questioning of the Mad Driver” and “the reckless driver’s version,” the Grand Chamber sided with Federal Court in concluding that Bédat’s tone was sensational.
In addition, it also took issue with his explicit conclusions about the veracity of accused’s statements, which in the Court’s opinion was precisely the function of the judicial authorities to address.(4) Influence of the impugned article on the criminal proceedings
The Grand Chamber was of the opinion that even though Bédat did not expressly claim that the accused acted intentionally in the killing and injuring others, [the article] was nevertheless set out in such a way as to point a highly negative picture of the [accused], highlighting certain disturbing aspects of his personality and concluding that he was doing ‘everything in his power to make himself impossible to defend himself.’” [para. 69]
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At no time during the open PJ investigation of 2007/8, the period covered by Amaral's book, did McCanns ever have the lawful right to publicly defend themselves against any of the many accusations leaked from a confidential process without risking a jail sentence.
The following is my opinion:-
I actually hope that Portugal will refuse a friendly settlement so that the Court can judge the case on its merits & publish their conclusions. That route would ensure no ambiguity in the terms of a friendly settlement and the issue of ex-gratia payments.
Sadly, the only financial winner here will be Amaral. The Domestic Courts have allowed him to keep the proceeds of his book and reimbursement of his legal fees which the McCanns were obliged to pay. Furthermore. he is also the beneficiary of a substantial, but unknown, amount of funding raised by PJGA to cover his costs in the first place. The McCanns are unlikely to receive over €75,000 in damages on top of substantiated legal costs based on prior ECHR compensation awards recommended be paid by the offending State. The moral victory may ultimately be theirs but the message in this case is that crime does pay.
