Grâce à la liberté dans les communications, des groupes d’hommes de même nature pourront se réunir et fonder des communautés. Les nations seront dépassées.
Friedrich Nietzsche (Fragments posthumes XIII-883)

17 - Acordão do STJ - Final Ruling (2)


Première partie ici



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i) that because of the defendant Gonçalo Amaral's statements in the book, the documentary and the interview with the Correio da Manhã, the Judicial Police had ceased to collect information and to investigate the disappearance of Madeleine McCann,
j) that because of the defendant Gonçalo Amaral's statements in the book, the documentary and the interview with the Correio da Manhã, the claimants Kate and Gerald McCann find themselves completely destroyed, from a point of vie moral, social, ethical, sentimental, family, far beyond the pain that the absence of his daughter causes them,
k) that in particular because of the defendant Gonçalo Amaral's statements in the book, the documentary and the interview with the Correio da Manhã, the claimant Kate McCann finds herself immersed in a serious and deep depression, which has already made her declare publicly I'd like to be in a coma, to relieve pain
l) that the defendant Gonçalo Amaral had been retired of the Judicial Police from 1.6.2008,
m) that the criminal investigation had been reopened by the emergence of new evidence,
n) that the attention of the media and people in general had decreased with the publication of the defendant Gonçalo Amaral's book .
2.2. The appellants complete their allegations with the following conclusions :
a. In order to subsume the fact in the special unlawfulness forecast of article 484° of the CC, enough is the confirmed or spread fact being susceptible, given the circumstances of the case, to shake the prestige or the good reputation that a person enjoys in their social environment.
b. A book and other communicational substitutes that don't essentially report any fact, evidence or clue belonging to the criminal investigation they allude to, since those were considered inexistent by the shelving report, are susceptible to shake the prestige that a person enjoys or the good reputation of this person in the social environment.
c. It shakes also the honour, the good name and the image of any innocent person, and already cleared before through the filing dispatch of a criminal investigation (the conclusion of which is that there is no element of proof nor evidence that the person committed any crime), a book, a documentary and an interview, extravagant in relation to the criminal investigation, and not even being part of those communicational supports the mention of that filing dispatch, but instead exactly the contrary of what this dispatch is postulating.


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d. And the honour, the good name and the image of any innocent and cleared citizen are even more shaken by communication media that intend and are able to disrespect and weaken the judgement reached by State magistrates, the sole holders of the penal action, (the media) representing the target citizen, in the eyes of the remaining citizens, as suspect of the practice of crime, through the use of concret circumstances advertisers that proclaim the "truth of the lie", "unique revelations" and "confidences", and that will prove the crimes that target the innocent citizen, all that with the confessed intention to inculcate third parties with the conviction that a child died and that her parents are involved in the occultation of her cadaver, simulating abduction and cheating the justice and the common citizen.

e. The right of free expression isn't absolute and must respect the right to honour and good name. When that expression, even of a true fact, is abusive and therefore unlawful, it can be subject to legal sanction.

f. The right-duty to express one's thought must be exercised with a clear civic criterion, of respect for man by man, and the information must be guided by rigorous ethical and moral rules, appropriated to a natural civic coexistence.

g. The abusive and harmful acts of arguable expression of a retired public agent do not fit in the constitutional or conventional concept of freedom of expression, in force in any democratic country in the world. They challenge without logical, honest and valid support, a judicial decision, untouched and uttered in a process that this same agent investigated, through a comportment contrary to his own professional statute, to the social peace and to third-party personality rights, acts exclusively for financial and social gain and to create a popular phenomenon, the repercussion of which benefits the injured parties and entails substantial and indelible damage to the injured, even because such conduct is prohibited not only in relation to the absolute rights of the concerned ones, but also in view of the duties to which a retired public agent remains bound.

h. In the case of the minutes, in relation to the never compressed personality rights of the concerned ones, a possible overvaluation through the abusive exercise of a legal good and not absolute constitutional interest – freedom of expression, freedom of information, freedom of the press – is not only unacceptable, but repels the human being, because it is an illegitimate, illegal, abusive and anti-juridical exercise of rights, because it constitutes a degrading and inhuman treatment...

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... and because it con-substantiates an unconstitutional conduct, violating international treaties on humanitarian, immoral and unethical law.
i. The rights relied on by the applicants and already acknowledged by three of the judgements uttered before in first instance, fit in and are justified by the fundamental principle of human dignity, until now characterising the politico-sociological profile of the Portuguese State, with expression in the regulation of the tutelage of the right to good name and reputation, in the tutelage of the protection of one's innocence, in effective judicial protection and in the tutelage of the right to personal life and integrity.

j. Freedom of expression, freedom of the press and social communication, in a society of the rule of law like the Portuguese one, doesn't contain in itself an especially powerful and incompressible guarantee and its regime does not overlap with the personality rights called in the minutes by the applicants. They must therefore yield to them in order to insure greater constitutional objectives.

k. Freedom of expression and social communication, representing a de facto power, forces the State, in these circumstances, to secure, namely through its courts of law, a system of effective guarantees of the fundamental rights of the citizen, in front of such a power, in compliance with the fundamental principle of the democratic State of Law, which is to respect and ensure the effective implementation of the fundamental rights and liberties of the citizens.

l. In Portugal, regarding the CRP, the UDHR, the European Convention on 1 Human Rights and the Convention on 1 the Rights of the Child, it is not allowed to write, to spread by all means and to comment with every possible nuance, a thesis that criminally charges innocent citizens and never even judicially accused of the crimes that it contains. It is not up to the State and the Courts of Law to protect whoever behaves this way, but, yes, to protect the citizens of such aggressions.
m. Exactly because they are not only absolutely innocent, but also because they have the right to benefit from the principle of innocence presumption by acting and behaving like any other citizen who has not been made arguido in a criminal process, everything that the parents of a missing child do by itself, within legality, for getting their daughter back or representing her or knowing what happened to her, must be welcomed by Portugal, not like a voluntary compression of the personality rights of these parents,...
1 : Not "of".


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… but like an activity protected by national and international rights, the assertion and diffusion of the thesis proclaimed urbi et orbi 1 by the respondents not even fitting in the scope of possible criticism of this conduct.
n. The judicial agreement contrary to the above findings, reflected in the appealed judgement, by promoting and making possible in the specific case the re-publication of the book or of the film, and the acquittal for the respondents to pay proportionally and adequately the indelible detriments they have caused to the appellants by virtue of their illegal acts and communication media, according to, by the way, what was previously decided and stated by three of the first instance's judgements uttered in the minutes, is :

On one hand, struck by a vice of erroneous interpretation and application to the case at stake of the provisions of articles 12° of the UDHR, 6°, 8° and 10° of the European Convention on Human Rights, 5°, 6°, 9°, 11°, 13°, 14°, 16°, 17° and 34° to 37° of the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations in November 20 1989, ratified by Portugal in September 21 1990, of the articles 1°, 2°, 8°, 20°, 26°, 32°, 37°, 38° and 272° of the CRP, 70°, 80°, 81°, 335°, 2°, 483° and 484° of the CC, 371° of the CPP, 74° of the D.L (law decree) 498/72 of December 9, and the 3° of EDTEFP (Disciplinary Statute of Civil Servants), dedicated by D.L. 234/84 of January 16 and, in the subsequent version still applicable to the minutes, in law 58/2008 of September 9.

On the other hand, struck by the material unconstitutionality by virtue of the normative understanding which the appealed decision gave to the legal norms set out in articles 1°, 2°, 8°, 16°-1, 2, 18°-2, 20°, 26°-1, 32°-2 and 37°-4 of the CRP :

A) when interpreted and applied to the present case, in the sense of allowing the publication of the book or the film, and the acquittal of the respondents to pay appropriately and proportionately the indelible damages that they caused to the appellants by virtue of their action, and abusive and illicit communication media.

and

B) when it is more certain that this interpretation and application of said constitutional precepts, is shown incompatible with the inalienable principles of the dignity of the human person, of the general protection of personality and of the right to good name and reputation, and also under the supervision of effective jurisdiction and of the innocence presumption.

1 "Orbe" in the original, but this is a dative case : urbi (to the city) and orbi (to the world).


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Terms in which, and in the more of Law that Your Excellencies surely supply, always in view of the replacement of the very righteous sentence now revoked by virtue of the TRL (Tribunal da Relação de Lisboa,  Appeal Court) judgment,
Your Excellencies must fully adjudicate the recourse of Ordinary Review filed by the appellants ;
More, that decision should, in consequence, be fully replaced by another that, applying the Law to Facts, at least
1) Declares the unlawfulness of the facts attributable to the respondents and their guilt in the performance of the same;
2) Recognizes that the respondent companies constituted vehicles of the wrongdoing committed by the respondent Gonçalo Amaral, for which reason they are liable for the measures that under article 70-2 of the CC must be ordered in the case, according to criteria of adequacy and proportionality, precisely to mitigate the effects of this tort ;
3) Recognizes that such measures must consist in the prohibition of sale and order of collecting the books, addressed to Gonçalo Amaral and G&P for delivery to the Appellants; 
4) Decrees prohibiting the execution of new editions of the book or DVD. As well as the transfer of publishing rights and author rights. Such injunction should be directed against the respondents Gonçalo Amaral, G&P and VCFA, that is, this last one, regarding the first, the holder of the audiovisual adaptation rights of the book;
 5) In accordance with the provisions of article 8290-A1 of the CC, establishes an appropriate compulsory sanction for benefits actually not fungible, considering proportional an amount never less than € 50.000 (fifty thousand euros) for each infringement of this order (article 829-A2 of the CC);

6) Compensates for the proven damage that have been verified in the legal spheres of the appellants and that are the direct and necessary cause of the unlawful, guilty and abusive conduct of the respondent Gonçalo Amaral, damage which, once balanced the degree of guilt of the party at fault, the seriousness of the offense, the temporary and social circumstances in which the facts were committed, and, since it is particularly relevant in this specific case, the value of the benefits accrued by the party with the unlawful act, shall not be compensated with a lower amount of compensation filed in the proceedings by each of the appellants and previously stipulated for them, in that exact measure, by the judgment now revoked by the TRL.

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2.3. The respondent Guerra & Paz Editores SA, counter-argued, concluding in the following terms :
A. At stake in the present autos is the book Maddie, the Truth of the Lie written by the respondent GA and published by the respondent G&P. The publishing contract was celebrated with the appellant GA on 10/3/2008, the book being published on the 24/7 of the same year.
B. Circulate on the Internet, without the authorization of the respondent, an English version and a Portuguese version of the book at issue in the present case, and a version of the documentary, with English subtitles. As well as a full copy of the criminal process.
C. The action that originated these proceedings and of which the respondent is a party was also brought against TVI, which was acquitted by the first instance judgment, that has already become res judicata (final judgement) on this point.
D. In other words, the appellants accepted the acquittal in the first instance of the defendant TVI which had broadcast twice a documentary based on the book written by the respondent Gonçalo Amaral and published by the now respondent G&P and, consequently, they accepted that such defendant could broadcast the documentary and divulge in some way the thesis of the book.
E. With the exception of paragraph a) of the request formulated in the action, all other paragraphs are addressed to all defendants of the action, TVI including , therefore the appellants do not care if the defendant TVI practices the facts that they intended to beware of with the present action, but concerning the respondent and others they do.
F. With the acceptance of the acquittal of the defendant TVI, the present appeal that seeks to sue the respondents Gonçalo Amaral,  G&P and VCFA, con-substantiates the abuse of rights foreseen in article 334° of the CC and implies the groundlessness of the present appeal.
G. We live in a democratic State of Law, based on pluralism of expression, which guarantees freedom of thought and free disclosure, besides the fact that we must all contribute to the enrichment of culture through the publication of books and documentaries. 
H. As it is undisputed that the appellants have achieved notoriety and fame in Portugal and around the world, it is not possible that they grant interviews to the media, even in the intimacy of their home, when it is favourable, and then forbid the publication of books...
   
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I. Thus the sphere of private life of the claimants, as much through their notoriety as through their option,  can only be considered reduced, especially according to the terms and effects of the contents of Article 80°-2 of the CC
J. The appellants maintain to the same extent the dignity of the human person, the good name and reputation and the presumption of innocence which they had before and after the publication of the book in question.
K. There is a chronology and succession of public and notorious facts that cannot be omitted, that are reflected in the factuality given as proven in the enumeration of the appealed judgement and also in the filing dispatch included therein.
L. Since the disappearance of the child, up to this date, the appellants have publicised their opinion on the facts, though these are still unknown today.
M. As well as the appellants, every citizen has the right to have an opinion on the facts and to publicize it.
N. The rights to freedom of expression and information and the right to freedom of the press and social communication media are enshrined in articles 37° and 38° of CRP.
O. And further, the right to freedom of expression is enshrined in Articles 19° of the UDHR and 10° of the European Convention on Human Rights.
P. Contrary to the claim of the appellants, various decisions of the ECHR, that can be consulted, have come to condemn the Portuguese Courts of Law for violating the right to freedom of expression and freedom of the press by condemning journalists and other citizens for defamation.
Q. The ECHR considers that the right to freedom of expression is one of the essential foundations of a democratic society.
R. The STJ in Portugal has also delivered judgments that value the right to freedom of expression, to the detriment of other rights.
S. In view of the exposed elements, there can be no doubt that the right to freedom of expression and the right to freedom of the press are fundamental in a democratic State of Law.
 
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T. As stated, it was the appellants themselves who freely and conscientiously chose to make public facts that besides cannot be considered from private and family life.
U. The request for protective injunctions of the appellants' personality rights petitioned are not suitable for the purpose at stake, besides of being illegal.

V. And could only be applied after detailed analysis to verify, case by case, if they are legal, appropriate and proportionate to the specific case and who are the recipients thereof, which is forbidden to that Court.

W- The present minutes are composed of two different actions with different values. The respondent G&P is part of an action with a value of € 30,000,01, whereby this is the value of the costs paid by the party whose claim is rejected.

X. The uttered judgment must be maintained in its precise terms, at risk of violating, namely, the
Articles 13°, 20°, 37°, 38° and 42° of the CRP

Articles 5°, 158°and 615° of the CFC (sic, likely CPC, Codigo de Processo Civil)

Articles 334° and 335° of the CC

Article 19° of the UDHR

Article 10° of the European Convention on Human Rights.

 

2.4. It can be verified that the divergence found in the decisions of the instances consists essentially in the following :


- the first instance found that the defendant Gonçalo Amaral, for having been responsible for the criminal investigation as a member of the PJ, although, meanwhile, he retired, couldn't enjoy full and complete freedom of expression, since the functions he was in charge of  imposed on him, in particular, the reserve duty, wherefore that freedom having to yield to this duty, his conduct was unlawful in virtue of the art. 484°of the CC.

- the second instance took the view that this argumentation could not be upheld, inasmuch "it would be hardly understandable that a civil servant, even more a retired one, should carry on his silence and reserve duties, thus limiting the exercise of his right to opinion as to the interpretation of facts already made public by the judicial authority and widely discussed, actually largely at the instigation of the protagonists themselves, in national and international media", imposing himself to consider...
 
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 ... the publication of the book in question as revealing the legitimate exercise of right to opinion.

The appelants, in the conclusion of their claim for review, despite alluding to their claim to have the sentence of the first instance reinstated, did not make any express reference to the question of the alleged reserve duty of the defendant Gonçalo Amaral, to which, according the same judgement, freedom of speech should give in, which constitutes the cornerstone of the entire construction leading to the conclusion that the conduct of that defendant was illicit, by virtue of art. 44° of the CC.

That thesis, as we have already seen, was not welcomed by the Tribunal da Relação (Appeal Court). So, what the appelants claim is that, in order to subsume the fact to the special provision of illegality of the aforementioned art. 484°, enough is the affirmed or disclosed fact to be capable, taking into account the circumstances of the case, of undermining the prestige of someone or the good reputation enjoyed by someone in the social environment.
So much more, they add, when innocent and cleared citizens are concerned (via the filing dispatch of the criminal proceedings), who are anyhow entitled to benefit of the principle of innocence presumption.

Furthermore, they claim that free speech, in a society of primacy of law, such as the Portuguese one, does not contain in itself any guarantee particularly powerful and incompressible, its regime not overlapping with the personality rights called by the appellants in the minutes. It should therefore yield to them, with a view to ensuring greater constitutional objectives.

Let's see.
The central question
that must be considered in this present appeal is how to resolve the conflict between the rights of claimants Kate and Gerald McCann, now appellants, to good name and reputation, and the rights of the defendants Gonçalo Amaral,
G&P and VCFA, now respondents, to freedom of expression and information, and to freedom of the press and media.

That question implies the formulation of the following question: must the conduct of the respondents be regarded as unlawful, for besmirching the honor of the appellants ?


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As the outcome of what has been exposed above, freedom of expression and honor constitute two fundamental rights that, given its relevance, deserved a constitutional consecration.
A broad conception of honour is approved, encompassing the various meanings which are legally recognized to this concept : the Constitution safeguards the "good name and reputation" (art. 26-1), the CC welcomes the "moral personality" (art. 70°-1), "honor or reputation or simple decorum" (art. 79°-3) and the "credit or good name" (art. 484°) ; the CPP protects "honour or consideration" (art. 180° sq).
Thereby, the art. 26°-1 of the CRP welcomes the right to good name and reputation, which, according to Gomes Canotilho and Vital Moreira, in the CRP annotated , Vol. 1, 4th ed., p. 466, consists essentially in the right not to be offended or harmed in one's honour, dignity or social consideration by imputation made by others, as well as the right to defend oneself of this offense and to obtain a relevant reparation.
For its part, the article 37° of the CRP recognizes two sets of rights - the right to expression of thought and the right to information. The right to expression is, straight away, freedom of expression, that is to say the right not to be prevented from expressing oneself and to spread ideas and opinions.
According to those distinguished constitutionalists, op.cit. p. 572, the regime of the right to expression of thought and the right to information is, in the juridical-constitutional perspective, essentially identical. The normative scope of freedom of expression should be as broad as possible to include opinions, ideas, points of view, convictions, criticism, stances, value judgements on any matter or issue (political, economic, gastronomic, astrological questions), and whatever are the purposes (influence of public opinion, commercial objectives) and the criteria of appraisal (truth, justice, beauty, rational, emotional, cognitive, etc.).
Thus, while the aforementioned art. 37° regulates the freedoms and rights of expression and information in general, the art. 38° deals with these rights when exercised through
the press and other mass media.
In this way, freedom of the press is only a qualification of freedom of expression and information intended for the public.
That is why the first shares the entire constitutional regime of the latter.
The honour and freedom of expression are also enshrined in the Universal Declaration of Human Rights (UDHR - art. 12° and 19°, the art. 29°-2 establishing the criterion of...


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... harmonization of the various rights) and in the European Convention on Human Rights (art.8° and 10°).
Although the STJ has already understood, in particular in the judgements of 30/06/11 and of 1914/16 (in www.dgsi.pt), that the ECHR does not protect, in general, the right to honor, referring it only as possible integral part of the restrictions to freedom of expression mentioned in the quoted art. 10°-2, the jurisprudence of the ECHR considers that from respect for privacy enshrined in article 8° of the ECHR emerges a right to protection of reputation (cf. the following cases : Petrina vs Romania (78060/01), Abeberry vs France (58729/00) and Leempoel SA. ED Cine Revuc vs Belgium (64722/01), cited in the above mentioned Judgement of the Lisbon Appeal Court of 14/02/12, and, more recently, the cases Medipress-Sociedade Jornalística,Ldt. Vs Portugal (55442/12) and Tavares de Almeida Fernandes e Almeida Fernandes vs Portugal (31566/13).

In these last two cases, the decisions of which date, respectively of 30/08/16 and 17/01/17, it was considered that whenever the Court has to rule on a conflict between the two mentioned rights, which are also protected by the Convention, it must take stock of the interests at stake, from the point of view of art. 8° as well as from the point of view of art. 10°, since those two rights deserve, a priori, an equal respect.

It should be noted that, in the civil and legal sphere, the art. 335° of the  CC states that the concrete resolution of a conflict of rights with identical value requires its harmonization,
seeking to optimize them so that each one can produce its best effects.

However, since there is a collision of fundamental rights, the conflict can not be solved by the principle of equal treatment. It is necessary to weigh the interests concerned in order to determine which needs more protection in the case at stake.

In the present case we are, clearly, facing rights belonging to the category of personal rights freedoms and guarantees, being then applicable their specific regime, namely the one provided in art. 18° of the CRP, more precisely what is expected in the 2nd paragraph, according to which:

The law may only restrict rights, freedoms and guarantees in cases expressly provided for in the Constitution. The restrictions being limited to what is necessary to safeguard other constitutionally protected rights or interests.


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The mentioned 2nd paragraph thus gave clear constitutional haven to the principle of proportionality, also called principle of prohibition of excess, which, according to Gomes Canotilho and Vital Moreira. op. cit. p. 392-3, is divided into three sub-principles: the principle of adequacy (the restrictive measures of rights, freedoms and guarantees should prove to be an appropriate means for the pursuit of the contemplated purposes, safeguarding other constitutionally protected rights or assets), the principle of liability (such restrictive measures must be required in order to achieve the objectives in view of the fact that the legislator does not have other less restrictive means to achieve the same objective), the principle of fairness or proportionality in the strict sense (disproportionate, excessive measures will not be adopted to achieve the intended objectives).
Likewise one can see the Ruling n° 634/93 of the Constitutional Court of 4/11/93.
In the light of the Constitution, freedom of expression and honour have the same legal value, turning impossible any principle of abstract hierarchy among them (Gomes Canotilho, Constitutional Law and Constitutional Theory, Coimbra, 2003, pp. 1225 and 1237).
It is therefore appropriate to use the principle of practical concordance or harmonization that obstructs a solution sacrificing a right in relation to the other and forces to the existence of constraints and mutual conditioning, with the aim of reaching a solution of harmony or practical agreement between both (see article 18°-2,3).
However, as it is impossible to reach a solution of harmonization in order to obtain a fair solution to the collision of rights, positive aspects will have to be counterbalanced, followed by a balancing methodology adapted to the specificity of the case (norm of decision in situation, in the words of Gomes Canotilho, op. cit. p. 1237).
This is why the conflict resolution cannot fail to take on a concrete nature, exhausting itself in each case it resolves.
In fact, settling the conflict in the abstract would imply a prioritized hierarchy of rights constitutionally inadmissible.
As it is known in modern democratic States of Law, like Portugal, the conflict between freedom of expression and honour is a classic issue.

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Particularly when those involved are public figures and a matter of public interest is involved.
The concrete resolution of the conflict between freedom of expression and honour of public figures, in the European legal context, where we are inserted, takes place under the influence of the European jurisprudential paradigm of human rights.

In this way, the ECHR interpreting and applying the European Convention on Human Rights has defended and developed a doctrine of enhanced protection of freedom of expression, in particular when the person targeted by imputation of facts and formulation of dishonourable value judgments is a public figure, the issue being a question of political or public interest in general.


As Francisco Teixeira da Mota points out in "The European Court of Human Rights and Freedom of Expression - the Portuguese Cases", p. 89 : Though the European Convention on Human Rights doesn't add many rights to those already contained in our Portuguese Constitution, its ratification by Portugal is a significant milestone for a number of reasons, among which stands out the fact that Portugal joined a juridico-cultural community which values and upholds human rights and the fact that its citizens have now direct access to international (European) mechanisms of protection of those rights.


It has been understood, between us, both at the doctrinal and jurisprudential level, that the ECHR occupies an infra-constitutional position, its application in internal order being therefore dependent on conformity to the precepts of our fundamental law and that has a supra-legal value, so that the internal laws, posterior to a internally received treaty, that contravene the provisions of their orders will not, to that extent, be able to be applied by the courts (Rui Moura Ramos, "The European Convention on Human Rights - Its Position on the Portuguese Legal System" and "Implementation of the European Convention on Human Rights - Some Problems", in Documentation and Comparative Law – BMJ, 1980 and 1983 respectively).


The national judges are, in this way, linked to the European Convention on Human Rights, since, having been ratified and published, it constitutes a national law which as such must be interpreted and applied, in constitutional terms, over domestic law (art. 8° of the
CRP).


Moreover, under article 16°-2 of the
CRP, the constitutional and legal precepts related to the fundamental rights must be interpreted and integrated in accordance with the UDHR.

   
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As António Henriques Gaspar, current Judge-Counselor President of the
STJ refers in The Influence of the European Convention of Human Rights in the Interjurisdictional Dialogue, the National Perspective or the Other Side of the Mirror, intervention in the Colloquium on the occasion of the Commemoration of the 300th anniversary of the validity of the Convention in Portugal - STJ, 10/11/08, published in Revista Julgar, n° 07, p. 39, In spite of the limited terms of direct linking, the decisions of the ECHR, when interpreting the provisions of the Convention, must have a 'specific authority' which is imposed on all States by the so-called "autorité de la chose interprétée" (res interpretata authority) : the ECHR's function is "to clarify, safeguard and develop" the Convention's norms, helping to ensure that States respect the commitments assumed under the Convention entailment.
In such a way that the interpretation by the ECHR of conventional norms must be considered as integrating the Convention itself. The principle of entailment can be found in the wording of articles 1° and 19° which preside over the entire European Convention of Human Rights.
Thus, national judges, when interpreting and applying the Convention, as first-line conventional judges, must take into account the methodological references and interpretations and the jurisprudence of the ECHR as the proper instrument of conventional regulation.
It has to be reckoned that, according to the opinion of the national judges assembled for reflection and consultation (cf. Avis n°9, 2006, of the Conseil Consultatif des juges européens, on the function of national judges in the effective application of international and European law), the case-law of the ECHR must be for all judges a reference in the process of elaborating a body of European law.
 
On the other hand, on 28/1/03, the Parliamentary Assembly of the Council of Europe through the Recommendation 1589 (2003) reiterated to the Committee of Ministers, among other measures, the necessity to turn public the data related to the monitoring of the exercise of freedom of expression in member and candidate countries and the necessity for member states to incorporate the ECHR jurisprudence in the field of freedom of expression in their internal legislation and to ensure the appropriate training of the judges.
Nevertheless, as it is obvious, taking into consideration the case-law of the ECHR is not acceptance by imposition, but rather an intellectual imperative, that implies analysis and balancing, from which the outcome may be acceptance but also divergence.

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In fact, the judges judge only according to the Constitution and the law, not having entailment of any kind, except the duty of compliance by lower courts of the decisions proclaimed, on appeal, by higher courts.
Paraphrasing the current Judge Counsellor President of the STJ, op. cit. p.44, The dialogue and the interaction between the European instance and the national instances has to assume, on the part of those, a position of great openness and the assumption of a culture of judicial cosmopolitism.
Which, nevertheless, does not fail to alert to situations in which the national margin of discretion is completely removed by transforming in fact, the ECHR in a fourth instance, contrary to the conventional model of control (op. cit. p. 42).
However, as it is said here (op. cit. p. 50) the international bodies, for their part, must also bear in mind the warning of Judge Jackson of the Supreme Court : We are not final because we are infallible, but we are infallible only because we are final (Note : in English in the text).
Consequently, he concludes (op. cit. p. 50), the interjurisdictional dialogue must be undertaken by national judges with intellectual rigor, without the radicalisms proper to any methodological nationalism.
Anyhow, there are matters that are more permeable to jurisprudential reading of the ECHR, therefore, in these cases, it is more appropriate to take them as reference.
This is the case with the case-law on freedom of expression, built on the interpretation and application of the art. 10° of the European Convention of Human Rights, which offers a host of extremely useful criteria for the national courts, already integrating a European consensus, so that internal decisions can not fail to take this case-law into account.
Such a consensus reveals a doctrine of enhanced protection of freedom of expression, in the terms referred to above, which is considered as super freedom and as one of the most precious rights of man.
However our case law on freedom of expression, in its confrontation with the right to honour, tends in general to uphold the primacy of the latter over the first (cf. inter alia, the judgements of the STJ of 26/4/94, 14/2/02, 7/3/02 and 8/3/07 in www.dgsi.pt).
We acknowledge, indeed, that, while on the ECHR side the solution to the issues related to interference in freedom of expression is found by taking into account its exceptional nature and the central importance of that freedom in a democratic society, ...

  
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On the national instances' side there is a clear tendency to secondarily favour freedom of expression and to overestimate the right to honour.
This has caused Portugal to be condemned by the ECHR for violation of art. 10° of the European Convention of Human Rights (cf. the cases Lopes Gomes da Silva vs Portugal (2000), Urbino Rodrigues vs Portugal (2005), Roseiro Bento vs Portugal (2005). Almeida Azevedo vs Portugal (2007), Colaço Mestre vs Portugal (2007), Leonel Azevedo vs Portugal (2008), Medipress Sociedade Jornalistica. Lda. Vs Portugal (2016) and Tavares de Almeida Fernandes and Almeida Fernandes vs Portugal (2017)).

We observe, in this respect, that in the cases in which the Portuguese State would be condemned by the ECHR for violation of Convention norms, a request of review can be lodged to the Court that issued the decision to re-examine (cf. art. 449°-1g of the CPP, introduced by Law n° 48/ 2007, of 29/8, and art. 771°-f of the CPC, introduced by D.L n°303/2007 of 24/8 - art. 696°-f of the NCPC-)

Thereby followed the injunctions of the Recommendation R (2000) of January 19 2000 from the Committee of Ministers of the Council of Europe, which constitutes a soft law instrument that called on States to provide for the possibility of reopening internal proceedings when the re-examination is the necessary means to repair the entitlement affected in the cases where violation is stated by the ECHR.

This reflects the growing importance of the case-law of that Court. However, it is clear that national case-law has been operating at a turning point, having for basis and groundwork the pertinence, the dignity and the dimension of freedom of expression, as stated in the STJ's judgement of 7/3/01 (cf. also the STJ's judgments of 7/2/08, 10/7/08, 30/6/11, 28 /6/12, 8/5/13, 21/10/14 and 19/4/16, where the influence of the jurisprudential paradigm of the ECHR is evident).

The first instance judgement accounts for all this. This is why it was reproduced in part in this judgement (cf. the first 39 pages). We assume that there was a correct invocation of the legislation and of the case-law relevant for the purposes of deciding on the central question referred to above and still for reasons of procedural economy, so as not to repeat legal and jurisprudential citations, which, in this way, we consider here as reproduced.


However, that sentence ended up resolving the issue by resorting to the presumption of innocence of the claimants Kate and Gerald McCann and to the reserve duty of the defendant Gonçalo Amaral,...


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... and we disagree with the decision so decided on the basis of the arguments which we shall adduce next.

Before, however, the relevant facts to be taken into account in deciding the question referred to above shall be listed below :
5. The claimant Madeleine McCann has been missing since 3/5/2007, and the office of the Republic Prosecutor for the Portimão district has opened a criminal investigation
6. The dogs of the British police 'Eddie and Keela' have detected human blood and body odours in the Ocean Club, apartment 5-A.
7. The dogs Eddie and Keela, from the British police, have detected human blood and cadaver scent in the vehicle rented by the Kate McCann and Gerald McCann applicants  after Madeleine's disappearance.
8. The claimants Kate McCann and Gerald McCann were constituted arguidos (formal suspects) in the criminal investigation.
9. In folios 2587-2602 of the criminal investigation, the 10/9/2007, Chief Inspector Tavares de Almeida wrote a report and in particular the following : Given what we could establish, the facts point towards the death of Madeleine McCann during the evening of 3 May 2007, in the apartment 5A of Praia da Luz Ocean Club resort, occupied by the McCann couple and their three children (p. 2599) (...)
Taking into account all that was presented in the minutes, it results that :
A) The minor Madeleine McCann died in apartment 5A of the Ocean Club in Praia da Luz in the evening of May 3, 2007 ;
B) A simulation of abduction took place ;
C) In order to make possible the death of the minor before 22h, a story about checking on the McCann children, as they slept, was invented ;
D) Kate and Gerald McCann are involved in the concealment of the body of their daughter Madeleine McCann ;
E) On this date it seems there is no solid evidence that the death of the minor was not due to a tragic accident;
F) Given what has been confirmed so far, everything indicates that the McCann couple, as self-defence, does not want to deliver immediately and voluntarily the body, existing a high probability...


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... that the same was removed from the place where it was originally disposed of. This situation is likely to raise questions about the circumstances in which occurred the death of the minor.
Thus we suggest that autos be delivered to the prosecutor of Lagos aiming :
G) A possible new interrogation of assisted witnesses Kate and Gerald McCann ;
H) Evaluate the adequate measure of constraint to be applied in the case (page 2601).
 
10. In folio 2680 of the criminal investigation , on 10/9/2007, the prosecutor in charge of the investigation issued an order which namely says this:
During the investigation which goes on regarding the disappearance of Madeleine McCann, the proceedings being therefore open either to confirm or to deny that the occurrence of the disappearance is related to the crimes of kidnapping, homicide, exposure or abandonment and concealment of corpse, and in accordance with the established plan, the need was felt to gather information on the actual time of the disappearance, verify the location of each stakeholder – from the McCann couple to the group of friends with whom they were on holiday in tourist apartments in the Praia da Luz Ocean Club, i.e  Michelle Jane Tanner, Russell James O'Brien, David Matthew Oldfield, Rachael Jean Mampilly David Anthony Payne, Fiona Elaine Payne and Diana Webster – when the events occurred and in the moments that followed, and determine the movements of the assisted witnesses, Gerald McCann and Kate Healy, during their stay in Portugal, while also establishing connections between all stakeholders and third parties.
In this sense, and because the following investigation needed is essential for the discovery of truth , especially the analysis of information on telephone exchanges between the McCann couple and their friends, and other phone numbers, which have shown to be related to events of May 3rd 2007 evening, the autos are delivered to the Judge of Criminal Instruction (JCI).
11. In folio 3170 of the criminal investigation, on 3/12/2007, the JCI of Portimão issued a decree in which he stated particularly this:
Since the investigation, in these autos, concerns the practice of kidnapping, homicide, exposure or abandonment and concealment of corpse, the first three crimes being punished with a sentence of more than 3 years imprisonment, and since it seems convenient to identify the person who... 
  
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12. The defendant Gonçalo Amaral was, until 2/10/2007, the PJ inspector in charge of coordinating the investigation into the disappearance of the applicant Madeleine MC .

13. The defendant GA is retired from the PJ since 1/7/2008 (n° 19).
14. On 21/7/2008, the Republic General office Prosecution  informed through a "note for social communication" that the investigation mentioned in 5. would be shelved and could be reopened at the instigation of the Public prosecutor or at the request of any interested party, if new evidence arose, raising serious, relevant and consistent investigation (an° 20).
15. The archiving dispatch concerning the criminal investigation, issued le 21/7/2008 by the prosecutor, says in particular this (...) 
20. The (then) defendant Gonçalo Amaral is the author of the book Maddie - A Verdade da Mentira, published by the (then)  defendant G&P.
23. Is part of Maddie – A Verdade da Mentira particularly the following prologue: (…)
24. The defendant Gonçalo Amaral concluded his book Maddie - A Verdade da Mentira as follows :
 
For me and for the inspectors who worked on this case until October 2007, the investigation findings include :
1) The minor Madeleine McCann died in the apartment 5A of Vila da Luz Ocean Club Vila, on the evening of 3 May 2007;
2) There has been a simulation of kidnapping ;
3) Kate Healy and Gerald McCann are suspected of involvement in the concealment of their daughter's body;
4) Death could have occurred as a result of a tragic accident.
5) There are clues of neglect in the protection and safety of children ( pp.220-221 ).  
   
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25. The book Maddie - A Verdade da Mentira was launched on 24/07/2008 in El Corte Inglês Shopping Centre in Lisbon.

40. The (then) defendant VCFA produced the documentary Maddie, The Truth of the Lie, directed by Carlos Coelho da Silva, which is an adaptation of the book written by the (then) defendant Gonçalo Amaral. This documentary, in DVD format, is appended to the files.
41.At the beginning of the documentary, the defendant Gonçalo Amaral states the following:
My name is Gonçalo Amaral and I have been an inspector for the Judiciary Police for 27 years. I co-ordinated the investigation into the disappearance of Madeleine McCann on the 3rd of May 2007. During the next 50 minutes I will prove that the child was not abducted and that she died in the holiday apartment in Praia da Luz. Discover all the truth about what happened that day. A death that many want to cover up. 
42. At the end of the documentary, the defendant Gonçalo Amaral states the following :
What I know tells me that Madeleine McCann died in apartment 5A on the 3rd of May 2007. I am certain that this truth one day will be ascertained. The investigation was brutally interrupted and there was a hasty political archival. Some are hiding the truth but, sooner or later, the varnish will crack and revelations will surface. Only then will there be justice for Madeleine McCann. 
43. The defendant, VCFA, concludes the documentary with this statement :
The mystery remains, the former inspector believes that one day the truth will be known. For now, we are aware only that on the 3rd May of 2007, Madeleine McCann disappeared in Praia da Luz. She was 3 years old and she was a happy child. 
48. The defendant Gonçalo Amaral gave to the newspaper Correio da Manhã an interview, conducted by the journalists Eduardo Damaso and Henrique Machado and published on the 24th July 2008. Its contents is totally reproduced and announced on the front page, having been attributed to GA in particular the following statements (...) 
65. The Prosecutor Office in Portimão determined the creation of a digital copy of the investigation process, with the exception of parts subject to absolute secrecy, and its delivery, upon request, to several people, including journalists, which occurred.  

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66. The content of such a digital copy was made public, including through the Web, having been publicly and universally read, commented and discussed.
67. The (then) claimants Kate and Gerald McCann have alerted the press about the disappearance of their daughter.
68. The claimants Kate McCann and Gerald McCann gave an interview to the North-American TV program Oprah hosted by Oprah Winfrey, revealing the existence of new witnesses, reconstructions and e-fits.
69. The Oprah interview was worldly broadcast by signals available through satellite and cable networks.
70. This interview for the Oprah program was broadcast in Portugal by (the TV Channel) SIC, on the 9.05 and 12.05.2009.
71. The claimants Kate McCann and Gerald McCann, in collaboration with the British television station Channel 4, made ​​a documentary about the disappearance of their daughter, entitled Still missing Madeleine, lasting 60'.
74. The documentary SMM, translated Maddie, Two Years of Anguish, was broadcast by SIC on 12.05.2009.
75. On 17.10.2007, Clarence Mitchell, spokesman for Kate McCann and Gerald McCann said they were realistic enough to admit that their daughter would probably be dead.
76. There was a huge public interest in Portugal and throughout the world, about the events surrounding the disappearance of Madeleine McCann, the investigations carried out to find her and to determine what in fact happened, their evolution and vicissitudes, among which the constitution of the claimants Kate and Gerald McCann as suspects in the investigation process and the removal of the defendant Goncalo Amaral from investigations that were developed under his coordination.
77. The claimants Kate and Gerald McCann hired, through Madeleine's Fund, PR firms and spokesmen.
78. The so-called Maddie case has been deeply treated in the Portuguese society and in foreign countries, either by media organs or in books, like the works of Paulo Pereira Cristovão, Manuel Catarino and Hernani Carvalho.

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79. The so-called Maddie case was commented by Dr. Francisco Moita Flores, former Inspector, writer, and criminologist, as a columnist in various media.
80. The facts related to the criminal investigation of Madeleine McCann's disappearance that the defendant Gonçalo Amaral refers to in the book, in an interview with the newspaper Correio da Manhã and in the documentary are mostly facts that occurred and are documented in this investigation.
Next, let us recall the essential nucleus of the "European consensus" reached by the case-law of the ECHR on freedom of expression, built on interpretation and application of art. 10° of the European Convention of Human Rights :
(I) Freedom of expression, a postulate of democratic society and right. Being the basis of pluralism, of tolerance and of the spirit-opening necessary to the progress of this group of societies and to the individual development of its members ;
(II) the limitations on freedom of expression must be provided for by law, pursue a legitimate aim and be necessary in a democratic society ;
(III) when, in debates of issues of public interest, the possibility of restrictions on freedom of expression is particularly limited ;
(IV) the politicians, the public figures and senior officials of public administration, when in the exercise of their charge are subject to limits of criticism wider than private persons.
(V) In the examination of the limits of freedom of expression, de facto assertions have to be distinguished from statements of value, assertions addressed to the opponent's opinions from appraisals on the opponent's person, and what is criticism from what constitutes an insult and
(VI) the press has the duty to transmit information's and ideas on matters of public interest and in doing so it is allowed to resort to a certain amount of exaggeration, even of provocation (Cf. among many others, Smolor vs Poland, Thoma vs Luxembourg and Palomo Sanchez et al vs Spain). Cf. also about (I) Dalban vs Romania and Sabanovic vs Serbia and Montenegro (5955/06). As regards point (II), Azevedo vs Portugal (20620104) and Roseiro Bento vs Portugal (29288/02). Concerning point (III)., Lopes Gomes da Silva vs Portugal (37698/97) and Heinisch vs Germany (28274108). As to the point (IV), Sabanovic vs Serbia and Montenegro (5995/06) and Vellutini and Michel vs France (32280/09). On the topic of (V), Petrina vs Romania (78060/01) and Petrenco vs Moldavia (20928/05)...


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… As for point (VI), Renaud c. France (13290/07) and UJ vs Hungary (23954/10)).
In view of the above legal and case law framework, it is necessary to examine the specific situation set out in the minutes of this case, taking into account the facts (materia de facto) given as proven, already reproduced.

What results from this, as well referred in the sentence of the first instance, is that the book in question is the expression of an opinion, including the account of the conclusions that the author draws from the means of obtaining evidence produced in the investigation in order to formulate a thesis, an hypothesis of verification of the facts. 

It appears that both the interview as well as the documentary at stake are nothing more than ways of publicising the book and the thesis defended there, although the documentary develops it in a way, perhaps, more appealing.

That same thesis is synthetically, as well referred in the sentence of the first instance, that there was no kidnapping of the minor, contrary to the initial premise of the criminal investigation which is what the child's parents maintain up to now. What happened was the accidental death of the child in the flat of the tourist resort, then the cover up of this event through the concealment of her corpse and the simulation of the referred crime, carried out by the claimants Gerald and Kate McCann. 

However, as stated by the justice instances, the put forward thesis is no novelty, since it is also contained in the report referred to in n° 9 of the proven facts, elaborated in the framework of the criminal investigation with the date of 10/9/07.

This was then a line of inquiry pursued in the investigation which, incidentally, established the constitution of the presently appellants as arguidos (formal suspects) (cf. n°s 10 and 11 of the proven facts).

In addition, since the office of the Portimão Public Prosecutor provided a copy of the aforementioned investigation, namely to journalists, its content was publicly and universally divulged and discussed (cf. n°s 65 and 66 of the proven facts).

Consequently, what is discussed in the present case is the exercise of the right to opinion of the respondent on matters of public interest concerning the appellants who, in this case, have to be considered public figures.
In fact, the 'public figure' concept arises in opposition to the 'private figure' one, being this one the anonymous citizens, living in the simpleness of their existence.
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Concerning the minutes of this case, it can be said, taking into account the typology in which is analysed the concept of public figure referred to by Iolanda A.S. Rodrigues de Brito, in Freedom of Expression and Honour of Public Figures, pp. 46-7, that we are dealing with relative public figures, in so far as the appellants intervene publicly in order to influence a debate of public interest. This way, the perspective of their public life, connected with that debate, subjects them to a public interest for information, which guarantees them the possibility of accessing the social media.
And also, they are voluntary public figures, because they accepted to be thrown into the vulnerability of the public sphere, as a consequence of the role that they tried to assume in the public debate in which they decided to intervene.
Actually, as stated in the judgement under appeal and as it results from the proven facts, it was the appellants themselves who, by virtue of having easy access to the public debate, multiplied in interviews and interventions in the national and international media. Thus they opened the way for any person wishing equally to express an opinion on the case, contradicting their thesis.
Now, as Francisco Teixeira da Mota points out, op. cit. p. 21, The ECHR, in assessing the cases that are submitted to them, igrants the maximum degree of protection to the public debate and to freedom of expression, when public or political issues are at stake, including the public figures themselves and their actions.
This Court in fact considers that freedom of expression, as provided for in article 10°-1 of the European Convention of Human Rights, constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man.
As already mentioned, the ECHR has developed a doctrine of enhanced protection of the freedom of expression, when the person targeted by the imputations of facts and by the formulation of dishonourable value judgments is a public figure and when a matter of public interest is at stake.
Actually, being a public figure and not a mere private person, the targeted person is more exposed, unavoidably and consciously, to a tight control of their behaviour and opinions by journalists as well as by the general public. This is why the public figure should demonstrate a much greater tolerance in regard of such control.
And this is all the more so when it happens that the targeted persons themselves are the ones who utter public statements susceptible of criticism.  


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Of course the public figure is entitled to protection of his reputation, even outside the scope of their private life.
What is meant is that the imperatives of such protection must be weighed against the interests of free discussion of public issues.

This way, in the name of robust controversy, should not be protected unjustified personal attacks addressed to dignity, integrity and moral and professional probity, considered obviously unnecessary and disproportionate.

However, here too, the intense confrontation of ideas can easily lead to determined exaggerations, which must, to a reasonable extent, be protected, particularly in cases where it occurs in a public forum endowed with reasonable conditions of equality and reciprocity.

We observe, on the other side, that freedom of opinion, in the wording of the art. 10° of the European Convention on Human Rights, is the first of the constitutive elements of freedom of expression.

The distinction between facts and opinions is one of the aspects that the ECHR refers to as of particular importance.

Thus, while the existence of facts is possible to demonstrate, the truth of opinions is not susceptible of being proved. Requiring the proof of the truth of an opinion is impossible to fulfil and infringes the own freedom of expression, which is a fundamental part of the right guaranteed by the art. 10° of the "European Convention on Human Rights". However, even when an assertion corresponds to a value judgement, the proportionality of the interference may depend on the existence of a sufficient basis for the contested statement, since an opinion without factual basis to support it might be excessive (cf. Oberschlick vs Austria (1991)).

Freedom of opinion enjoys an almost complete protection in the sense that the possible restrictions allowed by article 10°-1 are inapplicable because they reveal an incompatibility with democratic society, such protection preventing the States from discriminating between citizens according to their opinions. Citizens indeed can not suffer negative consequences because of their opinions (cf. in this sense, Iolanda Brito, op. cit. p. 65).

According to Manuel da Costa Andrade, in "Freedom of the Press and Personal Inviolability", Coimbra, p. 274, the tolerance given to value judgement is ostensibly more generous than that granted to de facto imputations (...). 

 
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As Anabela Gradim points out in "Handbook of Journalism - Urbi et Orbi Style Book", p. 74,  
Who writes opinion is aware of the partiality of their positions, but simultaneously admits and wishes that these be shared and adopted by a large number of recipients of this opinion - that is the meaning of the argumentation : convert, convince, regiment (Cf. Also Jónatas Machado, "Freedom of Expression–Constitutional Dimensions of the Public Sphere in the Social System", BFDUC, Coimbra, pp.425-6 and 768).
The ECHR has stressed that issues of public interest should be debated and that opinions expressed on such issues, offensive to the honour of public figures, often arising encrusted in violent, hard and exaggerated language, should be protected by freedom of expression.

In the present case, what is verified is that the respondent conveyed his opinion, in the terms exposed above, taking into account, according to his understanding, the outcome of the elements of evidence and the clues gathered in the scope of the criminal investigation opened by the disappearance of Madeleine McCann on 3/5/07.

Thus, the enhancing judgment and the logical-deductive reasoning he develops throughout the book leads the reader to the conclusion that the child - whose custody and safety, along with that of her siblings Sean McCann and Amelie McCann, were neglected by her parents, here appellants, though neither reckless nor grossly, as it is said in the filing order issued by the prosecutor of the Republic on 21/7/08 - died accidentally inside the apartment where she was, after which occurred the simulation of her abduction and the concealment of her corpse.

While he's reasoning, the respondent questions the grounds or the foundations on which the allegation that Madeleine had been abducted could be sustained.

Those conclusions were subsequently reproduced by the respondent in the documentary and interview mentioned above, where he sought to discredit the affidavit of the appellant Kate McCann.

There is no remaining doubt that the respondent having been up to 2/10/07, the Judicial Police Inspector responsible for coordinating the investigation into the disappearance of Madeleine McCann (n°12 of the proven facts), he could not fail to know, in detail, ...

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… the clues and means of proof hitherto collected in it, and the inquiries that had hitherto been carried out.
That is why it is not surprising that the facts related to that investigation that the respondent refers to in the book, in the interview and in the documentary, are mostly facts that occurred and were documented in this investigation (n° 80 of the proven facts).

It should be noted that the understanding defended by the respondent was, also, in almost coincident terms, shared by chief inspector Tavares de Almeida, who wrote the report addressed to the Public Ministry and dated 10/9/7 (n° 9 of the proven facts).

It has still to be reckoned that the Public Ministry by fomenting by the JIC the obtention of (telecommunications) traffic data., alluded to their necessity for the investigation of the crimes of kidnapping, homicide, exposure or abandonment and concealment of a corpse. The sought to be obtained data were furthermore connected to the appellants and included not only the date of the facts but also the period they were staying in Portugal (n°10 of the proven facts).

These data were collected by order of the JIC (n° 11 of the proven fact).

Which means that the thesis profiled by the respondent, at a certain time, deserved being welcomed by the entity constitutionally in charge of carrying out the penal action (n° 11 of the proven facts).

For that matter, the appellants were constituted "arguidos" in the criminal investigation (n° 8 of the proven facts). 
This implies that emerged supported suspicion that they had committed crimes or crimes  (cf. art. 58° and 59° of the CPP ).

It is true that the criminal investigation was eventually closed, in particular because none of the clues which led to the constitution of the appellants as arguidos was subsequently confirmed or consolidated (n°15 of the proven facts).

However, even in the filing dispatch serious reservations are raised as to the likelihood of the allegation that Madeleine had been abducted, in view of the doubts raised by the Jane Tanner/Kate McCann version.

The investigation intended to see clarified those doubts by the reconstitution of the events mentioned in the closing dispatch, an initiative however that was made unfeasible by the witnesses' failure to appear after being summoned to.

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In the said order, it was concluded also that the appellants had neglected, although not recklessly or grossly, the duty of custody of their children, and still that, although it had not been possible to determine if the child was alive or not, it seemed more likely she was dead.
Actually a spokesman for the appellants said on 17/10/07 that they were realistic enough to admit that their daughter was probably dead (n° 75 of the proven facts).
From another angle, it has to be observed that, in the introductory note to the book at stake, the respondent affirms that the book's objective is to restore his good name which, in his understanding, was tarnished in the public sphere, to contribute to the discovery of the material truth and to the achievement of justice (n°23 of the proven facts)
It is clear, however, that the proven facts reveal that the respondent intended, on the one hand, to put in crisis the decision to remove him from the investigation, getting even to the point to suggest there had been a political management of the investigation and, on the other hand, to safeguard the rigour of the work of all the police professionals involved in the investigation until the moment he ceased to coordinate them.
Of all those circumstances does not result, in our view, that underlying the book, the documentary and the  interview, exists an defamatory intention against the appellants, i.e an animus injuriandi, but rather an animus informandi and an animus defendendi 1.
The opinion expressed by the respondent is sufficiently detailed in an intelligible and logical assessment of the facts and elements of evidence gathered in the investigation. Therefore the existence of a mere attack ad hominem to the persons of the appellants is not to be prefigured.
In addition, the disappearance of Madeleine and the subsequent investigation have become subjects of general interest and discussion at national and even international level, which, incidentally, was afforded by the conduct of the appellants themselves (n°s 65 to 71 and 76 to 79 of the proven facts).
Thus, everything points to balancing the interests at stake and following a balancing methodology adapted to the specificity of the case, in the sense of freedom of expression, which in this case requires greater protection, taking into account, also, the European legal context where we are inserted and the influence of the European jurisprudential paradigm of human rights.
1Animus injuriandi (intention to offend) vs animus informandi (intention to inform) and animus defendendi (intention to defend).


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But is, in this case, the protection of the appellants' rights to their good name and reputation closely related to the presumption of innocence, as said in the first instance's sentence?
And this because, as the appellants claim in the conclusions of their appeal allegations, beyond their being absolutely innocent and cleared by virtue of the filing order to close the proceedings, are they also entitled to benefit from the principle of presumption of innocence?
Let's see.
First of all it has to be said that the principle of the presumption of innocence (art. 32°-2 of the CRP, 11°-1 of the UDHR and 6°-2 of the European Convention on the Human Rights) is a rule of treatment to be given to the arguido (formal suspect) throughout the judicial criminal process.
Accordingly, this principle can not be construed as a restriction on public discussion of potentially criminal facts, despite that public bodies should, in their communications, resort to the necessary reserve to avoid creating the conviction that the arguido is in fact guilty (cf. Konstas vs Greece of 28/11/ 11 (n° 053466/071).
That referred principle may even impose, on the threshold of criminal proceedings, respect for an absolutory penal decision or even for a decision of archiving by the judicial authorities involved in subsequent proceedings (Allen vs United-Kingdom, of 12/7/2013, n° 1025424/0991).
Nevertheless, the Court of Justice of the European Union has decided that the principle of presumption of innocence does not apply to subsequent civil proceedings (mainly compensatory) to criminal proceedings, at risk of depriving the victim of her own right to accede to the courts and to be compensated (cf. the judgements in Y vs Norvvay (56568/00) of 11/ 5/2003 and Diacendo vs Italy (124/04) of 05/07/2012).

As Jónatas Machado points out, in "Freedom of Expression, Public Interest and Public Figures and Equalities", BFDUC, vol.LXXXV, 2009, p. 91,  
The presumption of innocence, because it's only a presumption, cannot overcome the search for the truth and the right of citizens to the truth. It cannot as well prevent public criticism and public scrutiny of the functioning of justice. The same happens, furthermore, with the attempt to demonstrate the innocence of a condemned person and thereby to move aside the mark of the conviction. The search for truth, including the truth about justice, has always been one of the main justifications of freedom of expression.

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It must be reminded that, in the present case, the issue isn't the appellants' penal liability, in other words their innocence or their guilt concerning the facts leading to the disappearance of her daughter doesn't have to be appreciated here.
What is in discussion here is merely the civil liability of the respondents, on the grounds that they have expressed and disclosed the above-mentioned thesis/opinion on the disappearance in question.
It follows that the outcome of the present case is not such as to call into question the extra-procedural dimension of the presumption of innocence.
This means that, even if the action does not proceed, it will not imply, even in the eyes of the community. any consideration of the appellants' liability, because such outcome will never will be able to be equated to an observation of respective culpability (cf. on this topic the judgements Del Latte vs Holland (n°44760/98) of 9/11/2004 and Cheena vs Belgium of 9/5/2016).
In addition, we are faced with a decision of filing by the Public Ministry which is subject to modification through various ways.
Thus, in addition to the recourse to the jurisdictional way, by opening the inquiry (note : the phase that follows the criminal investigation and is placed under the inquiry judge's authority, art. 287° of the CPP) and the complaint to the hierarchical superior (art. 278° of the CPP), the investigation can be reopened if new elements of evidence arise invalidating the grounds called upon by the Public Ministry in the filing dispatch (art. 279° of the CPP).
This is indeed even mentioned in the Note to the Social Communication released by the Attorney General's office on 21/7/2008 and announcing that the filing of the investigation had been decided. It was reported that it could be reopened on the initiative of the Public Ministry or at the request of any interested party if new elements of evidence arise triggering serious, pertinent and consequential proceedings (n°14 of the proven facts).
In this way, as the aforementioned filing order is not a judicial decision stricto senso, nor does it assume a definitive form, less would it be justified invoking the principle of the presumption of innocence to restrain freedom of expression.
And the safeguarding of the authority of the judicial power (cf. article 10°-2 of the ECHR) is not alluded to, since is definitely outdated the traditional idea that criticism against the judicial power must be proscribed as it contributes to the undermining of its dignity, authority and credibility in the long term. The best guarantee of dignity of all State institutions in the long run consists in its permanent opening to public criticism.

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...(cf. Jónatas Machado, Freedom of Expression - Constitutional Dimensions, op. cit. pp. 566-7)
And let not be said, too, that the appellants were cleared by the order of filing the criminal proceedings.

In fact, that dispatch was not proclaimed by virtue of the Public Ministry having gained the conviction that the appellants had not committed any crime (cf. art. 277° of the CPP).

The filing, in this case, was decided because it was not possible for Public Ministry to obtain sufficient evidence of the practice of crimes by the appellants (cf. the cited art. 277°-2)

There is, therefore, a remarkable difference, and not merely a semantic one, between the legally admissible grounds of the filing order.

Thus, it does not appear acceptable to consider that the alluded dispatch, based on the insufficiency of evidence, should be treated as evidence of innocence.

We consider, therefore, that the invocation of breach of the principle of presumption of innocence should not be upheld. That principle does not fall under the decision about the question that has to be resolved.

But was the freedom of expression of the respondent conditioned by the functions he performed and did those, even when he was retired, impose on him the reserve duty, as was upheld in the first instance sentence and is reaffirmed by the appellants ?

It is certain that the respondent, in the capacity of retired Judicial Police agent, continues to be linked to the public service, keeping furthermore the rights and duties that do not depend on the activity situation (cf. art 74°-1 of the Retirement Statute, approved by DL n°498/72 of 9/12).

As referred to in the Attorney General Consultative Council opinion of 16.12.06, quoted in the first instance sentence, by Esteves Remédio, the doctrine considers as duties of the retired that do not depend on the activity situation the duty of loyalty, the duty of nondisclosure and the duty of appropriate conduct, this being insistently reported to the abstention from committing crimes.

Moreover that recommendation mentions that the duty of nondisclosure is to maintain professional secrecy as for the facts of which (the retired agent) is aware by virtue of the exercise...

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of his charge, and that are not aimed at the public sphere. (quoting art. 3° of the disciplinary statute).
And, furthermore, the nondisclosure duty extends beyond the exercise of one's functions, remaining in the course of retirement, but, as in the activity situation, it is required that the conduct affects in a pertinent way the functioning of the service or the dignity and the prestige of the function or of the Administration.
It should be noted that nowhere in the legislation quoted regarding this in the first instance sentence, it is alluded to the reserve duty.
In this way the art. 5°-2e of the DL 196/94 of 21/7, which approved the Disciplinary Regulation of the Judiciary Police, expressly refers to 'the nondisclosure duty'.
For its part, the art.12° of the DL n°275-A/2000 of the 9/1, which approved the new Organic Law of the Judicial Police, is subject to the epigraph "Secret of justice and professional" (cf. article 149° regarding retired agents).
Now, as Cunha Rodrigues wrote in Justice and Communication, BFD 68 (1992), p.124, 'nondisclosure' should not be confused with 'reserve'.
In the present case and on the topic of the nondisclosure duty or of the secrecy of justice, which remains in the course of retirement, it must be understood that we are faced with a functional obligation which essentially protects the interests of the service to which the respondent belonged, namely the effectiveness of the criminal investigation. 
Still, the facts at stake had already been made public by the judicial authority and widely debated, both nationally and internationally. Moreover the investigation was already closed. 
On the other hand, the eventual breach of the nondisclosure duty on the part of the respondent
would not thrust out, in the sphere of private individuals, any subjective rights or legally protected interests, and would not therefore be considered as a source of illicitness.
In addition, the ECHR, in similar situations, takes mainly into account the importance of the cooperation of an enlightened and well-informed public to the proper functioning of justice (cf. Saygili and Others vs Turkey of 8/1/08 and July and Sarl Liberation vs France of 14/2/08).
We therefore consider that freedom of expression does not either have to yield to the invoked functional duty borne by the respondent, reason why his conduct was not illicit in the terms taken into account in the first instance sentence. 

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In our view, the judgment under appeal is correct by understanding that the argumentation of the First Instance may be upheld and by stating that it would be hardly understandable that a civil servant, even more a retired one, should carry on his silence and reserve duties, thus limiting the exercise of his right to opinion as to the interpretation of facts already made public by the judicial authority and widely discussed (actually largely at the instigation of the protagonists themselves) in national and international media. 
Contrary to what the applicants claim, in order to subsume the legal provision for unlawfulness considered by article 484° of the  CC, it is not enough that the fact stated or disclosed is susceptible, given the circumstances of the case, to undermine the prestige enjoyed by a person or the good image of that person in the social environment.
In fact, according to the Latin juridical axiom, qui jure suo utitur nemini facit injuriam (note : he who draws upon his legal rights harms no one).
This means that who acts in the exercise of a right is acting in accordance with the legal system and cannot therefore be held responsible in a civil point of view (see Antunes Varela, General Obligations, p.36).
Thus, when facts are imputed or expressed value judgements offensive to the honour of a public figure, it is possible that freedom of expression is being legitimately exercised.
That being, in the matter of expressing value judgements, the right to freedom of expression has a broader supporting appetence, given even the exceptional nature of the obligation to compensate for value judgements.
This does not preclude the maintenance of a concern for a balanced legal and concrete solution to the conflict between freedom of expression and the honour of public figures.
What these notions cannot be submitted to is to any anticipated judgement of abstract preference for any of them, since they meet two fundamental rights, constitutionally consecrated, and that hierarchically occupy the same place.
But since it is impossible for the conflict between two equal rights or of the same species to be resolved by the principle of equal treatment (cf. art. 335° of the  CC), the right that, in its exercise, is considered superior will be bound to prevail (cf. n° 2 of the same article), ...

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… taking into account the necessary balancing criteria evinced by this specific case.
These criteria have already been set out in the present judgement, as are in particular the achievement of a public interest, the public status of the alluded individuals, the sufficient factual basis of the ventured value judgements and the nature thereof, as well as the respective context (having a background of heated controversy on a matter of relevant public interest).
We consider that, in this case, in view of the verified matter of facts, the exercise of freedom of expression was contained within limits which must be considered admissible in a (post-) modern democratic society, open and plural, in view of the aforementioned criteria of equilibrium and the alluded principle of proportionality, which excludes the unlawfulness of the honour injury of the appellants.
Such a conclusion results from the interpretation of the internal norms in conformity with the Constitution, but also with the European Convention on Human Rights, read by the lawcase compendium of the ECHR.
According to Jónatas Machado, in "Freedom of Expression - Constitutional Dimensions", p. 750, the measure of civil and penal protection of personality rights is determined on the basis of the constitutional parameters of the freedoms of communication, refusing any systematic-immanent enhancing autonomy of those branches of law and emphasising particularly the constitutional purpose of creating a public sphere of open and uninhibited discussion of matters of general interest, this objective having always to be present in the analysis of the results of the application of the law.
Adding, this revere professor, in "Freedom of Expression, Public Interest", op. cit. p.74, that The preferential position of freedom of expression, in its quality of precondition for the democratic functioning of the political system, is an indisputable constitutional truth.
And alluding, more ahead, last op. cit. p. 77, to the duty to interpret the legal norms on the protection of honour, good name and reputation in harmony with the Constitution, in order to serve the promotion of constitutional purposes substantiating the protection of a free and democratic society where questions of public interest seal the subject of information and free and open discussion.
The case-law of the ECHR, as it has been already abundantly exposed above, is obviously inclined towards a restrictive interpretation of personality rights...

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… in confrontation with freedom of expression, so as not to compromise its central role in a democratic society.
On the other hand, as stated in the summary of the aforementioned STJ Ruling of 7/2/08 -  
From the case-law which has been ratified by the ECHR, it results an imposition on the mode of thinking : it is not justified wondering straightaway whether a particular piece of journalism offends someone. The starting point should rather be the freedom enjoyed by the respective author(s). Only after it should be questioned whether is justified – in view of the referential criteria of the same court, including a proper margin of appreciation on the part of the internal organs of each of the States signatory of the Convention – the restrictive interference in the field of that same freedom and the consequent passage to legal sanctions.
For that matter, the Constitutional Court has affirmed a clear historic will of the constituent legislator to follow the step of the European jurisprudence in the development of the fundamental rights likewise provided for in The Convention and the Constitution (cf. the Ruling of the Constitutional Court 157/2001, in D.R. Serie I de 10/5/01).
Faced with a settled case-law by the ECHR, as it happens in cases such as the present one, the Portuguese courts cannot but be influenced by the European paradigm of human rights.
This, however, does not mean resolving the conflict in question with an abstract preference for freedom of expression, but rather linking to the assumptions, i.e. to the European criteria for conflict resolution.
What is at stake, fundamentally, is to identify the legal good that will be, concretely, prevailing, taking into account that, in each conflict resolution, the balance pans, to begin with, are in a position of equilibrium, since freedom of expression and honour must start from a position of equality.
For this purpose, it is necessary to introduce the respective evaluation criteria in the pan of freedom of expression or in the pan of honour.
And it is playing with weights and counterweights that, in the end, it will appear which of the pans weighs more.
Well, in the present case, as it results from the foregoing, the pan that weighs more and is the freedom of expression one.
Which amounts to saying that this is the legal good that, in this case, prevails.

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Thus we shall have to conclude that, in the present case, prevail the rights of the respondents to freedom of expression and information and to freedom of the press and of the media.
Therefore the sentence under appeal does not deserve censure while excluding the unlawfulness of the respondents' conduct and, consequently, absolving them of all requests.
Dismissed, accordingly, are the conclusions of the appellants' allegations. We do not reckon that this judgement has violated any legal rule turned into the CRP , but rather we understood, as it results from what has already been discussed, that the interpretation of the norms applicable to this case was made in accordance with the Constitution.
3 - Decision.
Given what has been said, the request of review is denied and the appealed judgement confirmed.
Costs for the appellants.