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

[Mr Gray]

"Prove" or "Demonstrate" the Archiving document did not put any burden on the McCann to do anything to address their innocence.

Read the original in context.

We believe that the main damage was caused to the McCann arguidos, who lost the possibility to prove what they have protested since they were constituted arguidos: their innocence towards the fateful event; the investigation was also disturbed, because said facts remain unclarified.

this was a disgrace...why should the archiving report talk of the mccanns having to prove their innocence

[OxfordBloo]

We believe that the main damage was caused to the McCann arguidos, who lost the possibility to prove what they have protested since they were constituted arguidos: their innocence towards the fateful event; the investigation was also disturbed, because said facts remain unclarified.

this was a disgrace...why should the archiving report talk of the mccanns having to prove their innocence

In context please.

[G-Unit]

it doesn't say prove...that's provar...they use the word comprovar

comprovar   to prove
2.   comprovar   prove
3.   comprovar (verb)
Synonym: atestar   to vouch (verb)
4.   comprovar (verb)
Synonyms: distinguir, perceber, escrever   to make out (verb)
5.   comprovar (verb)
Synonyms: registrar, revisar, ticar, marcar em uma lista   to check off (verb)
So, this is how you say "comprovar" in english.

http://www.englishbraziliandictionary.com/en/dictionary-portuguese-english/+comprovar

[OxfordBloo]

Well, as Davel won't give the quote in context, possibly because the context destroys his contention, I sill post the section in full.

5 – The obvious and well-known advantages of immediate appreciation of evidence, or in other words, the fulfilment of the principle of contiguity of evidence in order to form a conviction, as firm as possible, about what was seen by Jane Tanner and the other interposers, and, eventually, to dismiss once and for all any doubts that may subsist concerning the innocence of the missing [child's] parents.

In this sense, the legal procedures were followed, according to the norms and conventions that are in force, and the appearance of the witnesses was requested, inviting them to be present inclusively appealing to solidarity with the McCann couple, as it is certain that since the beginning they adhered to that process diligence.

Nevertheless, despite national authorities assuming all measures to render their trip to Portugal viable, for unknown motives, after the many doubts that they raised about the necessity and opportunity of their trip were clarified several times, they chose not to attend, which rendered the diligence inviable.

We believe that the main damage was caused to the McCann arguidos, who lost the possibility to prove what they have protested since they were constituted arguidos: their innocence towards the fateful event; the investigation was also disturbed, because said facts remain unclarified.

[OxfordBloo]

In plain English it says that unfortunately because the Tapas seven did not agree to attend, this act by them denied the McCann the possibility of demonstrating their innocence.

It should be remembered that the Portuguese system of justice is Investigative not Adversarial. Presumption of Innocence is guaranteed when deciding guilt and there needs to be evidence that proves a case beyond reasonable doubt, but the process is collegiate rather than adversarial and is able to require reconstructions or for the Judge of Instruction to follow up theories on her own account.

[Brietta]

In plain English it says that unfortunately because the Tapas seven did not agree to attend, this act by them denied the McCann the possibility of demonstrating their innocence.

It should be remembered that the Portuguese system of justice is Investigative not Adversarial. Presumption of Innocence is guaranteed when deciding guilt and there needs to be evidence that proves a case beyond reasonable doubt, but the process is collegiate rather than adversarial and is able to require reconstructions or for the Judge of Instruction to follow up theories on her own account.

I'm still unsure of when this action officially became "not a libel action".

Newspaper reports claimed the McCann lawyers were saying in 2012 that they expected the plaintiffs to receive substantial damages; reports from the same newspapers also in 2012 have Goncalo Amaral's wife bemoaning the fact that the libel action had ruined their marriage, and most referrals in the press were to libel.

You have explained the situation succinctly as to why the other defendants could afford to be so sanguine throughout the court proceedings, I've got that ... and I hear what you are saying regarding damage to the McCann's reputation ... but logic tells me that is libel.

When did it cease to be a 'libel' action?

[OxfordBloo]

I'm still unsure of when this action officially became "not a libel action".

Newspaper reports claimed the McCann lawyers were saying in 2012 that they expected the plaintiffs to receive substantial damages; reports from the same newspapers also in 2012 have Goncalo Amaral's wife bemoaning the fact that the libel action had ruined their marriage, and most referrals in the press were to libel.

You have explained the situation succinctly as to why the other defendants could afford to be so sanguine throughout the court proceedings, I've got that ... and I hear what you are saying regarding damage to the McCann's reputation ... but logic tells me that is libel.

When did it cease to be a 'libel' action?

I have tried to explain above but I will try again.

It is related to libel but is not libel. It is almost defamation but not quite.

Defamation is damage to reputation.

Libel is defamation with no legal excuse.

There are more ways than defamation that damage may be caused to an individual- physical harm, psychological harm, loss of right to peaceful enjoyment, loss of family life etc.

This case was not about defamation as defamation is not of itself a criminal offence- for example the Publisher and TV Channel defamed the McCanns but it was not illegal because their right to free speech trumped the right to reputation of the McCanns.

Now given that the McCanns were already defamed by the publication of the book and so could suffer no further harm by the similar actions of Amaral in authoring the book, the question then becomes 'were the McCanns unlawfully harmed by Amaral and how.'

The Judgement found that distress was caused to the McCanns by the publication of the book because he had misused knowledge gained in a privileged capacity and that he had failed to maintain support of their status of being innocent of any crime.

The distress is separate from the reputational damage and it is the distress that forms the tort, not the reputational damage.

Above I gave a parallel to a planning case that was misconduct in a public office but not Fraud. The same arguments apply.

Amaral abused his position to distribute privileged information and failed to comply with his duty to maintain innocence.

The part of the civil code used concerns distress rather than personal integrity. The judgement does consider Personal Integrity as a guide to what penalties might be applied, although the judge is quite clear that she is using this only to guide her in setting the penalty for distress. 

[Brietta]

I have tried to explain above but I will try again.

It is related to libel but is not libel. It is almost defamation but not quite.

Defamation is damage to reputation.

Libel is defamation with no legal excuse.

There are more ways than defamation that damage may be caused to an individual- physical harm, psychological harm, loss of right to peaceful enjoyment, loss of family life etc.

This case was not about defamation as defamation is not of itself a criminal offence- for example the Publisher and TV Channel defamed the McCanns but it was not illegal because their right to free speech trumped the right to reputation of the McCanns.

Now given that the McCanns were already defamed by the publication of the book and so could suffer no further harm by the similar actions of Amaral in authoring the book, the question then becomes 'were the McCanns unlawfully harmed by Amaral and how.'

The Judgement found that distress was caused to the McCanns by the publication of the book because he had misused knowledge gained in a privileged capacity and that he had failed to maintain support of their status of being innocent of any crime.

The distress is separate from the reputational damage and it is the distress that forms the tort, not the reputational damage.

Above I gave a parallel to a planning case that was misconduct in a public office but not Fraud. The same arguments apply.

Amaral abused his position to distribute privileged information and failed to comply with his duty to maintain innocence.

The part of the civil code used concerns distress rather than personal integrity. The judgement does consider Personal Integrity as a guide to what penalties might be applied, although the judge is quite clear that she is using this only to guide her in setting the penalty for distress.

Thank you, I have understood all of that because you have explained it very well ... and the concept that Mr Amaral was free to write his book in the way he did has perplexed me, as I assumed that Judicial Secrecy covered similar ground to our Official Secrets Act which is considered binding.

When in Rome etc. ... and the McCanns were in a Portuguese jurisdiction subject to Portuguese law ... but despite your patience ... I still do not understand where the libel trial went and why it continued to be referred to as such.

If that is nipping your head, don't bother answering, I'll give it some more thought ... but if you can be bothered to explain that one point to me that will be fine.
I would have thought if the McCanns had lost a libel action at any time in the past it would have been meat and drink to many and we would have heard about it chapter and verse.  That has not happened.

[OxfordBloo]

Thank you, I have understood all of that because you have explained it very well ... and the concept that Mr Amaral was free to write his book in the way he did has perplexed me, as I assumed that Judicial Secrecy covered similar ground to our Official Secrets Act which is considered binding.

When in Rome etc. ... and the McCanns were in a Portuguese jurisdiction subject to Portuguese law ... but despite your patience ... I still do not understand where the libel trial went and why it continued to be referred to as such.

If that is nipping your head, don't bother answering, I'll give it some more thought ... but if you can be bothered to explain that one point to me that will be fine.
I would have thought if the McCanns had lost a libel action at any time in the past it would have been meat and drink to many and we would have heard about it chapter and verse.  That has not happened.

The question of libel was settled in 2010 on appeal when the lower court finding was overturned and the supremacy of Free Speech over Personal Reputation was settled.

The recent trial process was merely about whether or not Amaral's and others actions had harmed the McCann in any manner recognised by Portuguese law.

It found that the book publisher and TV programme were totally innocent, but that Amaral had breached his professional responsibilities.

[Brietta]

The question of libel was settled in 2010 on appeal when the lower court finding was overturned and the supremacy of Free Speech over Personal Reputation was settled.

The recent trial process was merely about whether or not Amaral's and others actions had harmed the McCann in any manner recognised by Portuguese law.

It found that the book publisher and TV programme were totally innocent, but that Amaral had breached his professional responsibilities.

I thought that the action of overturning the book ban by the higher court was merely that.  That incident was before my time of interest in the Madeleine McCann case and I really do not know a great deal about it, although I knew it was a set back for the McCann case against Amaral.

I recall that there was some controversy along the lines that the hearing was held without the McCann legal team being informed and therefore they were without legal representation ... not quite sure if that is correct.

Probably they did not appeal that because of the time factor ... I thought the present action was a continuation since the Amaral assets remained frozen, but obviously not? if what you are saying is correct.

Did their legal team advise them to take out a fresh action complaining of the damage caused? (if so, in light of the present ruling, the proper advice)

I will have to look into it further, but not tonight.

I can see exactly why there was such a punitive award against Mr Amaral, but I will have to mull over the 2010 situation some more ... thank you for your patience, OxfordBloo, you've certainly challenged us tonight

[Lyall]

Very interesting, OxfordBloo. Thanks for the explanations. Do you think his appeal could be successful or even partly successful?

I think us ill informed are right in saying that Portuguese law is different to English law. What would happen in the High Court in London if someone had published that book in England and they were sued (which I've no doubt they would be)?

[Mr Gray]

The question of libel was settled in 2010 on appeal when the lower court finding was overturned and the supremacy of Free Speech over Personal Reputation was settled.

The recent trial process was merely about whether or not Amaral's and others actions had harmed the McCann in any manner recognised by Portuguese law.

It found that the book publisher and TV programme were totally innocent, but that Amaral had breached his professional responsibilities.

I have asked before...could you show us where in it's judgement the supreme court discounted libel...

[Mr Gray]

comprovar   to prove
2.   comprovar   prove
3.   comprovar (verb)
Synonym: atestar   to vouch (verb)
4.   comprovar (verb)
Synonyms: distinguir, perceber, escrever   to make out (verb)
5.   comprovar (verb)
Synonyms: registrar, revisar, ticar, marcar em uma lista   to check off (verb)
So, this is how you say "comprovar" in english.

http://www.englishbraziliandictionary.com/en/dictionary-portuguese-english/+comprovar

we have been through this with Anne Gueddes and she agreed with me

[Mr Gray]

Well, as Davel won't give the quote in context, possibly because the context destroys his contention, I sill post the section in full.

5 – The obvious and well-known advantages of immediate appreciation of evidence, or in other words, the fulfilment of the principle of contiguity of evidence in order to form a conviction, as firm as possible, about what was seen by Jane Tanner and the other interposers, and, eventually, to dismiss once and for all any doubts that may subsist concerning the innocence of the missing [child's] parents.

In this sense, the legal procedures were followed, according to the norms and conventions that are in force, and the appearance of the witnesses was requested, inviting them to be present inclusively appealing to solidarity with the McCann couple, as it is certain that since the beginning they adhered to that process diligence.

Nevertheless, despite national authorities assuming all measures to render their trip to Portugal viable, for unknown motives, after the many doubts that they raised about the necessity and opportunity of their trip were clarified several times, they chose not to attend, which rendered the diligence inviable.

We believe that the main damage was caused to the McCann arguidos, who lost the possibility to prove what they have protested since they were constituted arguidos: their innocence towards the fateful event; the investigation was also disturbed, because said facts remain unclarified.

it doesn't matter how you say it the archiving report is criticising the mccanns for not proving their innocence....where as they should not question their innocence due to the presumption

[OxfordBloo]

it doesn't matter how you say it the archiving report is criticising the mccanns for not proving their innocence....where as they should not question their innocence due to the presumption

It is not. In plain English it is saying that the actions of the Tapas 7 denied the McCanns their legal opportunity to prove their innocence. Under the inquisitorial system the accused has the right to show to the Instructing Job that they are innocent- they do not have to prove their innocence but must be given the chance to demonstrate it. 

This does not mean that they are not considered innocent- they are- but the inquisitorial system starts from a middle point and both sides are able to prove their case.

It is similar to Scottish Law where 'Special Defences' can be entered that allow the accused to initially prove their innocence before being tried formally.

You do not understand how Roman Law derived judicial systems work therefore you misinterpret the words used in the archiving report.