Page 40
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 .
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 no element of proof nor evidence exists 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.
Page
41 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 concrete 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
those exclusively
for
financial
and social
gain and to
create a
popular
phenomenon,
the
repercussion
of which
benefits the
Page
41
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 concrete 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.
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 concrete 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
those exclusively
for
financial
and social
gain and to
create a
popular
phenomenon,
the
repercussion
of which
benefits the offending
parties and
entails
substantial
and
indelible
damage to
the offended ones,
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...
Page
42... 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
guidance of
the right to
good name
and
reputation,
in the guidance of
the
protection
of one's
innocence,
in effective
judicial
protection
and in the guidance 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,...
Page 43
… 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 understanding contrary to the above conclusions,
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 damages
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).
Page
44Terms 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
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 offence, 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.
Page
452.3. 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 prevent 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...
Page
46
… or
comments,
even on
publicly
known facts,
when they
feel those
might be
unfavourable.
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.
Page
47T. 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 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, because he 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...
Page
48... 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.
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 honour of
the
appellants ?
Page
49As the outcome of what has been exposed above, freedom of expression and honour 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),
"honour 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.
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...
Page 50... 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.
Page 51The 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.
Page 52Particularly 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 it has a
supra-legal
value, so
that the
internal
laws,
posterior to
a internally
received
treaty, that
contravene
the
provisions
of its commands 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.
Page 53As 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.
Page 54In 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, ...
Page 55… 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,...
Page 56... 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 impossible 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...
Page 57... 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 minutes 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 minutes 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 minutes, 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...
Page 5812. 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 (...) See first part
"Taking into account that certain points in the formal suspects' ('arguidos') and witnesses' statements revealed contradiction, at least apparently, or lacked physical confirmation, it was decided to carry out the "reconstitution of the fact", an operation that is consecrated in article 150° of the Penal Process Code (CPP) in the sense of duly clarifying, on the very location of the facts, the very important following details, among others : etc. etc.
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 ).
Page 5925. 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.
Page 6066. 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 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 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
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
Gonçalo
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.
Page 61
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)...
Page 62… 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.
Page 63
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.
Page 64Of 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
(...).
Page 65
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 judgement 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, ...
Page 66… 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.
Page 67In 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.
1 : Animus
injuriandi (intention to offend) vs animus informandi (intention to inform) and animus defendendi (intention to defend).
Page 68But 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.
Page 69It 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.
Page 70...(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
non-disclosure
and the duty
of
appropriate
conduct,
this being
insistently
reported to
the
abstention
from
committing
crimes.
Moreover that recommendation mentions that the duty of
non-disclosure
is to
maintain
professional
secrecy as
for the
facts of
which (the
retired
agent) is
aware by
virtue of
the
exercise...
Page 71… of his charge, and that are not aimed at the public sphere. (quoting art. 3° of the disciplinary statute).
And, furthermore, the non-disclosure 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
non-disclosure
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 non-disclosure
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 non-disclosure
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.
Page 72In our view, the judgement 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 attraction,
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),
...
Page 73
… 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...
Page 74… 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.
Page 75Thus 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.
