Première partie ici
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 .
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.
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.
... and because it con-substantiates an unconstitutional conduct, violating international treaties on humanitarian, immoral and unethical law.
… 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.
1 "Orbe" in the original, but this is a dative case : urbi (to the city) and orbi (to the world).
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,
More, that decision should, in consequence, be fully replaced by another that, applying the Law to Facts, at least
2.3. The respondent Guerra & Paz Editores SA, counter-argued, concluding in the following terms :
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.
Articles 13°, 20°, 37°, 38° and 42° of the CRP
- 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 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.
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.
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.
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.
the press and other mass media.
... harmonization of the various rights) and in the European Convention on Human Rights (art.8° and 10°).
seeking to optimize them so that each one can produce its best effects.
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).
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.
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.
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.
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.
… On the national instances' side there is a clear tendency to secondarily favour freedom of expression and to overestimate the right to honour.
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,...
... 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 :
... 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.
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 .
25. The book Maddie - A Verdade da Mentira was launched on 24/07/2008 in El Corte Inglês Shopping Centre in Lisbon.
66. The content of such a digital copy was made public, including through the Web, having been publicly and universally read, commented and discussed.
79. The so-called Maddie case was commented by Dr. Francisco Moita Flores, former Inspector, writer, and criminologist, as a columnist in various media.
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.
Of course the public figure is entitled to protection of his reputation, even outside the scope of their private life.
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 clues and means of proof hitherto collected in it, and the inquiries that had hitherto been carried out.
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.
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?
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.
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.
...(cf. Jónatas Machado, Freedom of Expression - Constitutional Dimensions, op. cit. pp. 566-7)
… of his charge, and that are not aimed at the public sphere. (quoting art. 3° of the disciplinary statute).
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.
… in confrontation with freedom of expression, so as not to compromise its central role in a democratic society.
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.
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.