I decline to respond to any insults posted on this, only now, found thread.
Criminal Law (Private Law) v.s. Civil Law (Common Law)
The First Trial over the book "Truth about the lie" was about defamation, damage of personality rights (image, good, name, honour,...) versus freedom of expression - 2 of the most important constitutional rights in Portuguese Law, and it fell within the parameters of Criminal Law. After all the levels of decision were followed, the Supreme Court decided towards the legitimacy of Freedom of Expression, considering the book didn't harm any private rights since, according to Portuguese Law, what it expressed was publicly available in the process case files.
The present Trial is about financial compensation for "alleged" damages caused by certain documents (book, CD, TV documentary). This is Civil Law, and it is common if you are about to present a court case for damages to ask for a cautionary arrest of the property of the individuals/organizations against which you are going to make such demand. It happens with private persons and with organizations all the time (so to speak).
What some people in here don't seem to grab is that this is not a "LIBEL" case - that has already been tried and the McCann lost - book, TV documentary & CD were not libelous. - This is about compensation pure and simple.
If you request to be compensated for a damage suffered you have to present unequivocal proof that such damages occurred. From the first sessions in Court I find it difficult to say the McCann have a case.
This is not a case where McCann being suspects or not have any relevance; this is not a case where previous trial courts where Amaral was present has relevance,...this is about the McCann demanding Amaral to pay them for "sufferings" they have to prove.
I know some people would prefer to wrap it all in the same package but that is not how the law works.
To sustain what is said I add the last lines of the Appeals Court decision in what concerns the "Defamation trial against Amaral & Co in order to suspend TV documentary, CDs & book sales"
«(...) In a concise manner:
The book at stake in this process – "Maddie – the Truth of the Lie" – which was written by the defendant Dr. Gonçalo Amaral, has the main motivation of defending his personal and professional honour, as the author points out right away in the preface and throughout his text.
The contents of the book does not offend any of the applicants' fundamental rights.
The exercise of its writing and publication is included in the constitutional rights that are secured to everyone by the European Convention on Human Rights and by the Portuguese Republic’s Constitution, namely in its articles 37º and 38º.
As we arrive at this point, we conclude that the decision that was made by the Court a quo must be revoked, and the analysis of the other issues that are placed under appeal are not justified, as they are considered prejudiced.
The appeal by defendant Dr. Gonçalo Amaral is sustained.
The other appeals are not taken into consideration, as it is understood that their appreciation is prejudiced – article 660º, no 2, of the Civil Process Code.
III – Decision
In harmony with what is written above, under the terms of the cited dispositions, the Judges at this Appeals Court declare the validity of the appeal filed by defendant Dr. Gonçalo Amaral, and the sentence of the Court a quo is revoked, its disposition replaced by the following:
The injunction is deemed not valid because it was not proved.
Furthermore we deliberate that we do not acknowledge the rest of the appeals.
Costs to be paid by the appellants*.
Lisbon and Appeals Court, 14.10.2010
The Appellate Court Judges,
Francisco Bruto da Costa
Catarina Arelo Manso
António Valente»
[translated in
http://www.mccannfiles.com/id344.html]
NOTE: as a further clarification, the decision was taken by a Civil Court to liberate the book & other documents that had been suspended by the First Court decision (I know it's confusing, but defamation is criminal & its consequences are civil).
