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 - MAR 21 - Rejet de l'imputation de nullité

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Review n° 1454/09.5TVLSB.U.S1

The plenary assembly, in the Supreme Court of Justice, ruled :

The appellants, Kate Marie Healy McCann and Gerald Patrick McCann, after being notified of fls.2739 et seq. of the ruling, argued at fls. 2793 et seq. before the assembly the nullity of that ruling, under the terms and for the purposes of articles 615-1b/e, 4 and 666 of the Civil Procedure Code.

The respondent Guerra e Paz Editores SA, answered, concluding that the allegation of nullity had no legitimacy.

The assembly has to decide, the examination of the minutes having been dispensed.

The appellants claim a lack of ground for the conclusion reached by the court that the principle of the presumption of innocence cannot be called upon in the minutes to restrict the right to freedom of expression, as the starting point was the mistaken assumption that the criminal proceedings were brought to a close because “the Public Ministry had not been able to obtain sufficient evidence concerning the practice of a crime by the appellants”.

They (the appellants) conclude that the defects of contradiction between the factual basis and the conclusions reached in the ruling, as well as the lack of ground, must be remedied.

Let's see.

According to the provisions of articles 615-1b, 666-1 and 685 of the CPC, the ruling is invalid when it does not specify the factual and legal grounds for the decision.

Thus, what the law considers null is the absolute lack of motivation, that is, the total absence of legal and factual grounds.

Well, it is obvious that this is not the case here, since the ruling at stake specified those grounds.

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Essentially, what it is all about is the appellants' disagreement with the decision of that ruling and they certainly consider that the statement of reasons is wrong.

This, however, does not produce nullity, it can only affect, if it occurs, the doctrinal value of the ruling.

On the other hand, under the terms of articles 615-1c (first part), 666 and 685 of the CPC, the ruling is invalid when the grounds are in opposition to the decision.

Here, it is a ruling which is vitiated by a logical defect that compromises it, since the grounds relied on therein logically lead not to the result expressed in the decision but to the opposite outcome.

The appellants allude to contradictions vices between the factual grounds and the conclusions reached in the ruling.

However, it does not appear that there is any contradiction between the grounds and the decision, nor do the appellants point them out with rigour, claiming that this happens when the ruling refers to the relationship between their rights to good name and reputation and the presumption of innocence.

Let us see, then, what is said here in that respect :

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 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)

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Nevertheless, the Court of Justice of the European Union has decided that the principle of presumption of innocence does not apply to  civil proceedings (mainly compensatory) subsequent 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.

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.

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Thus, in addition to the recourse to the jurisdictional way, by opening the inquiry (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 Memorandum 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 European Convention on Human Rights) 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 (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.

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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.

Consequently, the bases for the conclusion that invoking the breach of the principle of presumption of innocence should not be upheld, since that principle is not relevant for the decision at stake, are the various grounds alluded to in the text transcribed above. In other words, what is called upon right from the outset is that this principle is a rule of treatment to bestow upon the defendant throughout the criminal judicial process. At present, however, the issue is only the civil responsibility of the respondents. The above conclusion does not collide with the grounds on which it relies.

It is not the same to disapprove such grounds and to consider that there is an error of judgment.

The appellants also allude to the thrust of the Public Ministry's filing order, citing parts of that order set out in point 15 of the factual matter. Let us see, nevertheless, what this point 15 is made of and also the point 14, related to it :

14. On July 21, 2008, the Attorney General office issued a "memorandum for the media" announcing that the investigation referred to in paragraph 5 had been closed and that it could be reopened on the initiative of the Public Ministry or at the request of any interested party, should new evidence arise that could lead to serious, pertinent and consequential proceedings (article 209).

15. On July 21, 2008, an order of closure was issued by the public prosecutor concerning the criminal investigation, recording particularly the following: "Taking into account that certain points in the arguidos' (formal suspects) and the witnesses' statements revealed, at least apparently, contradiction or (...)

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(…) that lacked physical confirmation, it was decided to carry out the "reconstitution of the fact", an intervention set up in article 150 of the Penal Process Code, in order to duly clarify, on the very location of the facts, the following crucial details, among others :

1 - The physical, real and effective proximity between Jane Tanner, Gerald McCann and Jeremy Wilkins, at the moment when the first person walked by the other two, and which coincided with the sighting of the supposed suspect, carrying a child. It ensues strangely, in our perspective, that neither Gerald McCann nor Jeremy Wilkins saw her (JT), or the alleged abductor, despite the exiguity of the space and the peacefulness of the area;

2 - The situation concerning the window of the bedroom where Madeleine slept, together with the twins, which was open, according to Kate. It seemed therefore necessary to clarify if there was any draught, since movement of the curtains and pressure on the bedroom door are mentioned, which, eventually, could be verified through the reconstitution;

3 - The establishment of a timeline and of an effective checking on the minors that were left alone in the apartments, given that, if such checking is believed to be as tight as the witnesses and the arguidos describe it, it would be, at least, very difficult to reunite conditions for the introduction of an abductor in the residence and their posterior exit, with the child, namely through a rather narrow window. Furthermore the supposed abductor could only pass through that window holding the minor in a different position (vertical) from the one that witness Jane Tanner saw (horizontal);

4 - What happened during the time lapse between approximately 6.45/7 pm. - the time at which Madeleine was seen for the last time, in her apartment, by a person (David Payne) different from her parents or siblings - and the time at which the disappearance is reported by Kate Healy - at around 10 pm.;

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

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

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

We personally believe that the main damage was caused to the McCanns, (then) arguidos, who lost the possibility to demonstrate what, since they were constituted arguidos, they have been protesting : their innocence towards the fateful event ; the investigation was also disturbed, because said facts have still to be elucidated. (...)

This shows that the parents were not persistently worried about their children, that they didn't check on them like afterwards they declared they did, rather neglecting their duty to guard those same children, although not in a reckless, or gross, manner. (...)

While it is an inescapable fact that Madeleine disappeared from the apartment 5A of the 'Ocean Club', the manner and circumstances under which this happened are not - despite the numerous interventions deployed to this effect -, therefore the range of crimes that were indicated and referred to during the investigation remains changeless. (…)

Concerning the other indicated crimes, they are no more than that and despite our perception that, due to its high degree of probability, the occurrence of a homicide cannot be discarded, such cannot be more than a mere supposition, due to the lack of sustaining elements in the minutes.

It seems that the objective circumstances of Madeleine's parents, arguidos, not being inside the apartment when she disappeared, the normal behaviour that they adopted until said disappearance and afterwards lead to their non involvement in any penally relevant action, as can be amply concluded from the witness statements, from the telephone communications analysis and...

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 … also from the experts' conclusions, namely the reports from the FSS and from the National Institute for Legal Medicine.

Moreover, in fact none of the clues that led to their constitution as arguidos happened to be later confirmed or consolidated. So let us see: the information concerning a previous alert of the media before the police forces was not confirmed, the residues marked by the dogs were not corroborated in laboratory, and the initial indications from the above transcribed email, better clarified at a later date, ended up revealing to be innocuous.

Even if, hypothetically, one could admit that Gerald and Kate McCann might be responsible over the child's death, it would still have to be explained how, where through, when, with what means, with the help of whom and where to they freed themselves of the body within the restricted time frame that would have been available for them. Furthermore their daily routine until May 3 had been circumscribed to the narrow borders of the 'Ocean Club' resort and to the beach nearby, unknowing the surrounding terrain and, apart from the English friends that were with them on holiday there, having no known friends or contacts in Portugal. (...)

Tests and analyses were performed in two of the most prestigious and credentialed institutions for purpose - the National Institute for Legal Medicine and the British lab Forensic Science Service -, the findings of which did not positively assessed the collected residues, or corroborated the canine markings;

It has not been possible to obtain any piece of evidence that would allow for a average man, under the light of logic criteria, of normality and of experience's general rules, to formulate any lucid, sensate, serious and honest conclusion about the circumstances under which the child was removed from the apartment (...), nor even to produce a consistent prognosis about her destiny and inclusively - the most dramatic - to establish whether she is still alive or if she is dead, as it seems more likely.

Therefore, after all seen, analysed and duly pondered, facing what is left exposed, it is determined (…)

The archiving of the process concerning the arguidos Gerald Patrick McCann and Kate Marie Healy, as there are no indication of their practice of any crime (al. AO).

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With regard to the wording in the filing order's transcription, the text of the ruling pp. 66-67 says the following:

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.

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.

The appellants alluded to the “ostensible contradiction of grounds” because the ruling held that the closure of the criminal proceedings was determined since it had not been possible for the Public Ministry to obtain sufficient evidence of the commission of crimes by the appellants, whereas the filing order states that it occurred "because there were no indications that the appellants had committed any crime, in accordance with the provisions of article 277-1 of the CPP".  

First of all, let us say that the nullity pleaded consists in contradiction between the grounds and the decision and not between the grounds.  

In any case, it will always be said that the alleged contradiction does not exist because, in our view, although the filing order refers to the provisions of article 277-1 (note that the point 15 of the proved factual matter makes no reference to that article), what is pertinent is the content of the order and not a quoted legal provision. 

Now what is obviously underscored in that order is that it was not issued because the Public Ministry had been convinced that the appellants...

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 … did not commit any crime but because it had not been possible for the Public Ministry to obtain sufficient evidence of the commission of crimes by the appellants.

It means that the archiving would have been determined under article 277-2 of the CPP, and not under the first paragraph of that article, although the latter is quoted in the order.

This is why it was judged in the ruling that it would not seem acceptable to consider that the order should be treated as a demonstration of acquittal.

In fact, it does not appear anywhere in the order, that the collected evidence was sufficient to confirm that no crime was committed or that the then arguidos (here appellants) did not commit it in any sort of way (cf. quoted article 277-1).

The fact that the aforementioned “Memorandum for the media”, published by the Attorney General office on the same day as the filing order, informed that the investigation could be reopened “if new evidence arose that could lead to serious, pertinent and consequential proceedings”, precisely points out that the order was issued pursuant to article 277-2 of the CPP.

In fact, if the investigation had been closed according to the terms of the first paragraph of the same article, it could not be reopened (cf. CPP, reviewed, 2016, 2nd ed., by Henriques Gaspar, Santos Cabral, Maia Costa, Oliveira Mendes, Pereira Madeira and Henriques da Graça, pp.929, 932-3.

Anyhow, the intention was only to counter the appellants' assertion that, with the aforementioned order, it had been demonstrated that they were innocent.

Thus, in one form or another, whatever the grounds for the closure of the investigation and the preclusive effects of the respective decision (that has not the value of res judicata, which refers exclusively to decisions of a judicial nature, but is a “decided case” or “close to res judicata” - cf. op. cit. pp. 929 and 932), we would always consider that the public criticism and the public scrutiny of the functioning of justice were not impeded, as stated in the ruling in question.

That is to say, we would always conclude that the presumption of innocence principle would not be pertinent for the decision on the issue that we had to resolve.

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We have therefore to conclude that the ruling is not invalidated by the nullities of article 615-1b,c of the CPC, applicable through the combined provisions of articles 666-1 and 685 of the same Code.

In the light of the foregoing, the filing of nullities of fls 2793 et ​​seq. is dismissed and the appellants condemned at the expense of the incident which they gave rise to.

Lisbon, 21.03.2017

The document is signed by the three same magistrates who signed the 31.01.2017 ruling : Jorge Manuel Roque Nogueira, Alexandre Reis and Pedro Lima Gonçalves.