Madeleine McCann's parents win €500k in damages against former police chief.

[OxfordBloo]

I don't suppose you could explain what A Tort is in this instance, could you?

Thanks again.

A tort is a  is a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the act.

[OxfordBloo]

An important part of the Judgement:

Having been in charge of that investigation as part of the Judicial Police, the defendant Goncalo Amaral, although retired from the day July 1, 2008, did not enjoy, on 24 following , compared to those who were the criminal investigation results released on the 21st of the same month and year, broad and full freedom of expression.
This freedom was conditioned by his functions, it has functions that you imposed special duties that cross the status of retirement, including the duty reserve.
In the concrete situation, despite the personal reasons that the defendant invokes the introductory note of the book, was the freedom of expression that should give by imperative that reservation.
It was not what happened and the truth is that on July 24, 2008, scant three days after the release of the order for termination of the investigation for lack of proof, give up the launch of the book, its sale with the newspaper's editing and publication of the interview.

[stephen25000]

I've not seen any members of this forum objecting to people putting their money where their mouths are ... in fact I think the amount of the donation should be commensurate with the size of the mouth ... this is a free country and they can do with their moneys what they will.

I do find it rather sad that the wheels of the machine are grinding throughout twitter and the internet spewing out bile on Madeleine's family because the Portuguese Courts have made an award to them in recognition of the damage they have suffered.

I think the appeal will be settled reasonably quickly ... then it will be interesting to see if Portuguese Justice will progress the outrages the system suffered at the hands of the appellant.

You can dream.

Perhaps you should read again through the courts findings.

The book did not harm the search.................................

Having said that, what searching did the mccanns ever really do ?

[Eleanor]

A tort is a  is a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the act.

So since what Amaral did was unlawful, would it be correct to say that The Judge only had to decide on the level of harm and how much he should pay?

[Brietta]

An important part of the Judgement:

Having been in charge of that investigation as part of the Judicial Police, the defendant Goncalo Amaral, although retired from the day July 1, 2008, did not enjoy, on 24 following , compared to those who were the criminal investigation results released on the 21st of the same month and year, broad and full freedom of expression.
This freedom was conditioned by his functions, it has functions that you imposed special duties that cross the status of retirement, including the duty reserve.
In the concrete situation, despite the personal reasons that the defendant invokes the introductory note of the book, was the freedom of expression that should give by imperative that reservation.
It was not what happened and the truth is that on July 24, 2008, scant three days after the release of the order for termination of the investigation for lack of proof, give up the launch of the book, its sale with the newspaper's editing and publication of the interview.

Have I got this right?

In the context of the case and the damages awarded … Goncalo Amaral's freedom of speech as a citizen was superseded by his obligation as a public servant. 

Therefore the damage he was doing outweighed his rights in favour of the McCanns' right not to be defamed?


Welcome to the forum OxfordBloo.

[OxfordBloo]

Here is the nub of Portuguese Law on Personal Integrity:

"Under the aegis of ordinary law, the artº 70 of the Civil Code establishes the general protection of personality, stating that " law protects individuals against any illegal offense or offense of threat to their physical or moral integrity. "
On the other hand, even that civil law generally provides the artº 483º that "anyone who, intentionally or recklessly, unlawfully violates the right to another person or any legal provision intended to protect foreign interests is obliged to compensate the injured party for damages resulting from the violation "and the artº 484º specifically establishes that" anyone who claims or spread a fact capable of harming the credit or good name of any individual or legal, is liable for the damage. "
Pires de Lima e Antunes Varela state that it  "exists or not, by the natural or legal persons, an individual right to credit and good name, it is considered as expressly wrongful conduct that threatens to injure them within the prescribed terms. Never mind that the fact stated or disclosed correspond to the truth or not, as long as is likely, given the circumstances, to reduce confidence in the ability and willingness of the person to fulfill their obligations (loss of credit) or shake the prestige of the person or enjoy the good concept that is taken (loss the good name) in the social environment in which he lives or carries on business."

Note that even if the statement is true, it still can be seen as damaging the person.

This is also the case in England where for instance if one paraded outside a private home 12 hours a day with a placard detailing the criminal acts of an individual, one would be both civilly and criminally liable for harassment- because although the matter of fact was true, it was being used in an illegal manner.

If one were in that position one could call on the police to remove the person for Breach of the Peace, or if repeated ask for the person to be arrested for harassment. Or one could take out an injunction to estop the person from parading outside ones house, or sue the person for personal injury in the civil courts.

The important fact to grasp is that the same facts repeated by the TV and CD producers and the book publishers was not an offence of libel becasue their Free Speech was protected under the law, but Amaral lost the right to Free Speech on the issue because he misused his privileged position to harass and cause damage to the Mccanns.

Davel- the quote you give is from the section where the jusge is deciding the 'Quantum', amount of the damages and using case law in similar cases that showed that damages could be set to compensate for the monetary advantage that an offence such as libel might have resulted for the respondent. The judge seems to have balanced Amaral's profits from the book against the award to the McCanns.

[OxfordBloo]

So since what Amaral did was unlawful, would it be correct to say that The Judge only had to decide on the level of harm and how much he should pay?

She had to decide if a civil wrong- a tort- had been proved- that Amaral harmed the Mccanns in a manner not protected by law. He had not libelled the McCanns as the right to Free Speech makes what he said protected under the law, but he had harmed the Mccanns by misusing information gained in the course of his duties and by not conforming to the necessity of an officer of the law maintaining the innocence of unconvicted people.

In brief he has been found guilty of misusing privileged information and calling into question the Innocence of the Mccanns.

I think it will be very difficult to appeal this as these two accusations seem to be matters of fact- he did go beyond the Files (as the Judge explains at length) and he did say that the McCanns were guilty of concealing Madeleine, a criminal offence under Portuguese Law.

[Montclair]

Have you read the judgement? It gives chapter and verse for those Portuguese and European laws that make it clear what the duties of a public servant whether active or retired, and the requirement for prosecuting associates to continually support both the right to and fact of innocence.

You better tell that to the Appeals Court in Lisbon whereby the judges ruled, when they overturned the book ban, that Gonçalo Amaral despite being a public servant also enjoyed the same basic rights to freedom of expression and opinion as any other citizen in Portugal. I believe that the judge in her verdict was making references to rulings not laws which suited her opinion.

[OxfordBloo]

Have I got this right?

In the context of the case and the damages awarded … Goncalo Amaral's freedom of speech as a citizen was superseded by his obligation as a public servant. 

Therefore the damage he was doing outweighed his rights in favour of the McCanns' right not to be defamed?


Welcome to the forum OxfordBloo.

Exactly. As a person in a privileged position he lostthe right to call into question the Mccann's innocence, AND he took privileged information from his employment and used it to do psychological harm to the McCanns.

The other defendenets were not found liable becasue they were ordinary citizens or organisations and hence not covered by the laws on privilege and duty of police officers.

[Eleanor]

She had to decide if a civil wrong- a tort- had been proved- that Amaral harmed the Mccanns in a manner not protected by law. He had not libelled the McCanns as the right to Free Speech makes what he said protected under the law, but he had harmed the Mccanns by misusing information gained in the course of his duties and by not conforming to the necessity of an officer of the law maintaining the innocence of unconvicted people.

In brief he has been found guilty of misusing privileged information and calling into question the Innocence of the Mccanns.

I think it will be very difficult to appeal this as these two accusations seem to be matters of fact- he did go beyond the Files (as the Judge explains at length) and he did say that the McCanns were guilty of concealing Madeleine, a criminal offence under Portuguese Law.

Thank You.  This makes it all so much easier to understand.

[OxfordBloo]

You better tell that to the Appeals Court in Lisbon whereby the judges ruled, when they overturned the book ban, that Gonçalo Amaral despite being a public servant also enjoyed the same basic rights to freedom of expression and opinion as any other citizen in Portugal. I believe that the judge in her verdict was making references to rulings not laws which suited her opinion.

If you read the whole judgement you will find that is explained.

Amaral has the right to free expression but not the right to use information gained in his duties as a police officer- if he had kept to the files he would have been alright but the Judge specifies accasions where he relied on information that he had obtained under privilege. Additionally the Judge pointed out that Amaral had an absolute obligation as a retired Law Officer to protect teh Status of Innocent until proven guilty of any defendents within his purview- in this he failed by publicly accusing the McCanns of concealment.

[Montclair]

It is worth noting from the judgement that the case is referred to as an acção declarativa or declarative action.


Speak
Clear All
KATE MARIE HEALY MACCANN and GERALD PATRICK MACCANN, married, doctors, for itself and on behalf of their minor children, BETH MADEILENE MACCANN, SEAN MICHAEL MACCANN and AMELIE EVE MACCANN, residents in Orchard House, 5, The Crescent, United Kingdom;
Brought this declarative action in the form of common process (originally under the ordinary form), against,
GONÇALO DE SOUSA AMARAL, married, living in Cerro Azul Urbanization, lot 53, Quelfes, Olhão.

KATE MARIE HEALY MACCANN e GERALD PATRICK MACCANN, casados, médicos, por si e em representação dos seus filhos menores, MADEILENE BETH MACCANN, SEAN MICHAEL MACCANN e AMELIE EVE MACCANN, residentes em Orchard House, 5, The Crescent, Reino Unido;
Intentaram a presente acção declarativa, sob a forma comum de processo (originalmente, sob a forma ordinária), contra,
GONÇALO DE SOUSA AMARAL, casado, residente na Urbanização Cerro Azul, lote 53, Quelfes, Olhão.

What is an "acção declarativa" and what is its importance?

[DCI]

If you read the whole judgement you will find that is explained.

Amaral has the right to free expression but not the right to use information gained in his duties as a police officer- if he had kept to the files he would have been alright but the Judge specifies accasions where he relied on information that he had obtained under privilege. Additionally the Judge pointed out that Amaral had an absolute obligation as a retired Law Officer to protect teh Status of Innocent until proven guilty of any defendents within his purview- in this he failed by publicly accusing the McCanns of concealment.

I can't see what grounds he can use for an appeal. I hope it is denied!

[OxfordBloo]

What is an "acção declarativa" and what is its importance?

It is simply a request by a plaintiff for a court to declare that a certain matter is the case. In this case the Mccanns asked the court to declare that AMaral acted ina manner that caused them distress that wasa tort and for which he could be held responsible.

In English Law it would be up to the plaintiff (except in libel cases) to show that a tort had been committed but under continental law systems one request the court to consider the law and make a declaration whether the actions alleged amount to a tort.

[jassi]

Would he be able to appeal against the size of the damages even if he couldn't appeal against the judgement?