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)

10 - OCT 14 - Arrêt Cour d'Appel de Lx (2)

Traduction de Astro
Première partie ici

After reading the proved facts, we do now have to place them into a juridical context.
Concerning the suitability or unsuitability of the appeals, it is considered that the matter is solved in the dispatch that was written at the lower court, on pages 1.359/1.367, and the appeals are all suitable.


Les trois fondements principaux de la défense sont la liberté d'expression, garantie par la Constitution portugaise, la "simple reproduction" des données de l'enquête dans le livre et la présence de ces mêmes faits dans le rapport final des procureurs.

A Providência Cautelar (the injunction)
As was written, and well, in the decision that is under analysis, the injunction is a legal instrument that is destined to effectively protect subjective rights or other jurisdictionally relevant interests.  
Its practical importance does not result from the capacity to solve conflicts of interest in an autonomous and definitive way, but rather from its usefulness in the anticipation of certain effects of judicial decisions, in the prevention of serious or hardly repairable violation of rights, in the prevention of financial damages or in the preservation of status quo, until the final decision on the case is issued. It represents an anticipation or a guarantee for efficacy concerning the outcome of the main case and it is based on a summary analysis (summaria cognitio) of the factual situation that allows to state the right as being likely (fumus boni iuris) and the justified fear that said right may be seriously damaged or rendered useless, if a certain injunction is not decreed (periculum in mora). 
It is, after all, an antechamber of the main process, and it allows for an interim or provisory decision to be issued, with the purpose of diminishing the erosive effects that derive from the delay in a definitive solution, or to render fruitful the decision that may be favourable to the Applicant.
Article number 381-1 of the Civil Process Code stipulates that
whenever someone shows a well-based fear that someone else may cause a serious and hardly repairable damage to his or her right, that person may request the conservatory or anticipatory injunction that is specifically adequate to ensure the effectiveness of the right that is under threat.  
On the other hand, article 387-1 of the same diploma establishes that 
the injunction is decreed whenever there is a serious possibility of the existence of the right, and the fear of its lesion is sufficiently well-based.
Therefore, the injunction is a means, and not an end. It does not seek to directly and immediately carry out the substantial right, but rather to take measures that ensure the efficacy of a subsequent providence, which is actually destined to act on the material right. Therefore, the injunction is of a temporary nature and always depends on a cause (preliminarily or incidentally) - article 383-1 of the CPC.

Thus the success of the injunction depends on two requisites:
a) the verification of the appearance of a right;
b) the demonstration of the danger of said apparent right not being satisfied. Concerning the first requisite, the court is asked to appreciate or to judge on a mere possibility or verisimilitude (bonus fumus juris). As far as the second requisite is concerned, a judgement of stronger and more convincing probability is at stake.
The fear of serious and hardly repairable damage that is mentioned in article 387-1 of the CPC means present and founded fear.
The fear is founded when it is of such nature that it justifies the requested injunction; and it only justifies it when circumstances present themselves in a way that convinces that damage to said right is imminent. In the a quo Court's decision the dangers of lesion to the applicants' physical integrity or their treatment in a degrading, cruel or inhumane manner are promptly set aside. The dangers of lesion to the applicants' reservation of private and family life subsist, as well as the lesion to their right to image and a good name and the right to benefit from the penal process' guarantees, namely the right to a fair investigation and the right to freedom and to safety.




Os Direitos da Defesa
In an opposite position are the right to freedom of expression of thought and the freedom of press. Honour, the right to a good name are personality rights that are densely defended and protected by several legislative orders : right away, by the constitutional order (confront article 26 of the Portuguese Republic's Constitution), and also in the international order. Ordinary law also protects the same rights, as can be understood by reading articles 70, 72 and 484 of the Civil Code. 
As it has to be, jurisprudence strongly reflects that general tutelage and the defence of citizens' good name and image.
By all, one should read the very recent Ruling from the Supreme Court of Justice dated 20.01.2010 (Presiding Judge Fonseca Ramos), that can be reached on the internet, on the Court's database that is lodged under the address www.dgsi.pt/:
I) - One of the limits to the freedom of information, which is therefore not an absolute right, is the safeguard of the right to a good name. Journalists, [and] the media, are bound to ethical, deontological duties of rigour and objectivity.
II) – The media have the right, the social duty, to disseminate news and to emit critical or non-critical opinions, and it is important that they do so while respecting the truth and the intangible rights of others, like personality rights.
III) – The right to honour in a wider sense, and the right to freedom of press and of opinion are traditional areas of conflict.

V) – Criticism is limited by the targeted person(s)' right, but it does not lose legitimacy if it is slashing, sharp, as long as not insulting, because every so often that is the writer's style.

IX) – To criticise implies to censor, censorship that takes place in the media only stops being legitimate as a manifestation of individual freedom when it expresses objective anti-juricity, violating rights that are extremely personal and which affect, in a more or less lasting way according to men's memory, goods that have to be preserved like the ones that are at stake here, to a good name and to social prestige.
The right to inform is nowadays unanimously accepted as a fundamental demand of democratic societies of pluralist expression, it is consecrated by Article 37º of the Portuguese Republic's Constitution.
The rights of citizenship, which are the basis of social life, constitute the core of the very personality (physical and moral) of the human being; thus the right to life, to physical and moral integrity, to a good name, to image, to freedom, to the protection of intimacy are consecrated constitutionally (articles 24º, 25º, 26º) and in civil law (articles 70º and 484º of the Civil Code).

Due to the fact that all of these rights are constitutionally protected, in principle none of them raises above the others, and - in its practical exercise - each one of them should cede as strictly necessary and in a proportional way, in order to accommodate the adequate practice of the rest of them. Necessity, proportionality and adequacy are the fundamental principles for the practical conjugation of the concrete exercise of said rights ; therefore, the rules that are to be respected must be set case by case, thus allowing to decide which conflicting rights must be compressed, what limits have to be observed and what dominant rights must be protected. And it is through a cautious pondering of the rights at hand that we will be able to extract some conclusions concerning this specific case.

The book that was written by the first defendant, Dr. Gonçalo Amaral, presents a thesis that was at one time defended by several participants in the police investigation: that little Madeleine died accidentally and that her parents, here the first applicants, were suspected of concealing the cadaver. This defendant was the coordinating inspector of the investigation into the case of the disappearance, thus being the most qualified police officer who intervened in the investigation until the time when, through a decision from the Judiciary Police's (PJ) directory, he was removed from that function. In that role, the defendant was deeply involved in the entire investigation and had the opportunity to formulate all of the possible conclusions about the case, while it was under investigation. Approximately 5 months later, Dr. Gonçalo Amaral was removed from the investigation through a decision of the PJ's directory. As he clarifies several times throughout the book, the author felt the need to write it right away in order to, as he says,  
recover my good name, which was publicly dragged through the mud while the institution that I served for 26 years, the Portuguese Judiciary Police, did not allow me to defend myself, nor defended me institutionally. I asked for permission to speak out in that sense, a request that remains unanswered to this day. I fully respected the PJ's rules, and remained in silence. Nevertheless, said silence was tearing my dignity apart. Later on, I was removed from the investigation. I then decided that it was time for me to defend myself in a public way. Therefore, I immediately requested my retirement, so I could regain the plenitude of my freedom of expression.
This is a first point - and one that is not minor (remarquer la litote)- that should be registered: the author feels he is the victim of injustice and wants to re-establish the truth, at least his truth or his vision of truth, even more so as he felt that his honour was being diminished and the police force that he owed obedience to did not allow him to reply, as a police officer, to those attacks against his professional pride and his honour as a qualified criminal investigation police officer.
On est loin de l'accusation d'avoir écrit le livre pour faire de l'argent ou pour faire souffrir les MC.
In the book that is at stake here - Maddie - the Truth of the Lie - the author presents a vast multiplicity of facts and then offers his interpretation of said facts. Those facts are all part of the investigation and are exhaustively considered and weighed in the archiving dispatch of the process that is on the DVD which has been appended to this court case (page 441). In that description, there are main facts and others that are secondary, but which the author attributes value to, based on his experience as a police investigator, an activity that he has performed for 26 years. The author describes, in detail, several facts and circumstances that were not coherent in between each other, from the outset of the investigation, thus prompting contradictory conclusions.
Ces réserves ne sont pas une invention de GA, elles se retrouvent dans le rapport final des procureurs.
In the archiving dispatch that is signed by two Public Ministry magistrates, it is written that 
From the analysis of the set of depositions that were made, it became evident that important details existed which were not fully understood and integrated, which needed to be tested and verified on the location of events, thus rendering it possible to establish the apparent failures to agree and the lack of consistency in a suitable investigative form, the reconstitution. This could not be carried out,  despite the commitment that was displayed by the Public Ministry and by the PJ, to attain that purpose ...
In that very same dispatch, the result of the tests that were performed by the sniffer dogs Eddie (a dog that was specially trained to signal cadaver odour) and Keela (specially trained to detect the presence of human blood) are mentioned. Eddie marked (signalled) cadaver odour in the McCann couple's bedroom in apartment 5-A (from where little Madeleine disappeared) in the area next to the wardrobe ; in an area next to the living room window that has direct access to the street, behind a sofa ; and in an area of the same apartment's garden. The dog Eddie again marked the signal of cadaver : at the "Vista do Mar" villa, which was rented by the McCann couple after Madeleine's disappearance, in the area of a wardrobe that contained a soft toy that had belonged to the little girl ; on clothing that belonged to the applicant Kate Healy, Madeleine's mother ; on the outside of the Renault Scenic vehicle with the license plate number 59-DA-27, that was rented by the McCann couple after the disappearance, next to the driver's door ; and on that vehicle's key/card.

The dog "Keela" detected residues of human blood : in the same living room of apartment 5-A, which had already been signalled by Eddie ; after the floor tiles that had been signalled during the first inspection had been removed, she again signalled the spot where the floor tiles had been ; on the lower part of the window curtain that had already been signalled by "Eddie" before ; on the inside of the boot of the Renault Scenic vehicle that had already been signalled by "Eddie" ; and in the door storage compartment on the vehicle's driver's side, which contained the car key/card ;

The dogs' indications cannot be used as evidence in court, but in multiple cases they provided precious help in terms of collection of evidence for the Scotland Yard and the FBI, with positive results.
These indications were later not corroborated by the British forensics lab that was chosen by the investigation, but they were enough to constitute the applicants, Madeleine's parents, as arguidos in the criminal investigation that was performed over her disappearance. 
Remarquer qu'il n'y a aucune allusion à une précipitation en fait de statut de témoin assisté.

In possession of that new data, and crossing it with the data that had been collected before, the Portuguese authorities - the Public Ministry and the Judiciary Police - tried to perform a reconstitution of the facts, they did and tried everything, but due to the lack of availability of the McCann couple and their friends, who did not show up, said diligence could not be performed and those facts still remain to be clarified. Concerning that matter, it is written in the final dispatch that  
(...) despite the fact that the national authorities took all measures to render their travelling to Portugal possible, due to motives that are unknown, after the many doubts that they raised concerning the need and the opportunity of their travelling were clarified several times, they chose not to show up, which rendered the diligence impossible to perform. We believe that the main damaged party were the McCann arguidos, who missed the possibility to prove what they have protested since they were made arguidos: their innocence towards the fateful event; the investigation was also hindered, because said facts remain unclear (...).
Remarquer que, encore une fois les juges citent à l'appui de GA, non La vérité du mensonge, mais le rapport final des procureurs (le document qui selon le spin doctor "innocente" les MC).
In any case, the fact is that the indications that were mentioned above were sufficient to make the McCann couple arguidos. The subsequent collection and production of evidence, namely the forensics evidence that was collected and treated in laboratory, weakened that conviction and thus the couple stopped being arguidos. (1)  
What is certain is that since the start of the investigation there were incongruous and even contradictory situations concerning the witness statements ; the telephone records of calls that were made and received on mobile phones that belonged to the couple and to the group of friends that were on holidays with them; the movements of people right after the disappearance of the little girl was noticed, concerning the state in which the bedroom from where the child disappeared from was found (closed window? open window? partially open window?) etc., and the mystery would only become even thicker due to the clues that were left by the already mentioned sniffer dogs.
"Ce qui est certain"...
All of this is reported in detailed manner in the book that is at stake here, reproducing the contents of some of the case files, which also had an effect on the above mentioned final dispatch that was signed by two Public Ministry magistrates. In the book, we do not verify any reference to any facts that are not in that dispatch. Where Gonçalo Amaral differs from the prosecutors who have written the dispatch, is in the logical, police-work-related and investigative interpretation that he does of those facts. In that aspect, we stand before the exercise of freedom of opinion, which is a domain in which the author is an expert, as he was a criminal investigator for 26 years.
où GA diffère des procureurs qui ont rédigé le rapport final, c'est dans l'interprétation investigatrice, associée au travail policier et logique qu'il fait de ces faits.
 
Let us now analyse the juridical focus of the rights that were invoked by the applicants : as mentioned above, the Court's decision a quo immediately put aside the dangers of damage to the applicants' physical integrity or their treatment in a degrading, cruel or inhumane way. The following dangers subsist :
1. damage to the reservation of the applicants' private and family life;
2. damage to their right to image and a good name;
3. damage to their right to the guarantees of the penal process, namely the right to a fair investigation and the right to freedom and safety.

Concerning the applicants' reservation of private life, we verify that they themselves have given numerous interviews and intervened in the media, thus giving them [the media] information that would hardly be publicised by any other means: this includes the documentary that was produced by the British TV station "Channel 4", which had the applicants' cooperation and was widely broadcast in the United Kingdom and later on in Portugal (ref. Nos. 32 to 35 of the aforementioned proven facts); one should pay attention to the fact that the applicants have easy access to the national and international media, having given an interview to North American television talk show "Oprah" hosted by the well-known Oprah Winfrey, which was already broadcast in Portugal, also by SIC, on the 4th of May, 2009, and again on the 12th of May (ref. No. 40 of the same facts).

Concerning this matter, the CC establishes as follows:
Article 80 (Right to reservation over the intimacy of private life)
1. Everyone must maintain the reservation over someone else's intimacy of private life.
2. The extent of reservation is defined according to the nature of the case and the persons' condition.

Article 81 (Voluntary limitation of personality rights)
1. All voluntary limitation of the exercise of personality rights is null if it is contrary to the principles of public order.
2. The voluntary limitation, whenever legal, is always revocable, although with the obligation to indemnify any damages that were caused to legitimate expectations of the other party.
We conclude that the applicants voluntarily decided to limit their right to the intimacy of private life, certainly envisaging higher values like the discovery of their daughter Madeleine's whereabouts, but upon voluntarily limiting that right, they opened the doors for other people to give their opinion about the case, in synchrony with what they were saying, but also possibly in contradiction with their directions, yet always within the bounds of a legitimate and constitutionally consecrated right to opinion and freedom of expression of thought.We do not see that the right of the book's author, the defendant, can be limited by a right to the reservation of intimacy that suffered voluntary limitations by its holders, the applicants.
In the same way, concerning the applicants' right to image and a good name : upon placing the case in the public square and giving it worldwide notoriety, the applicants opened all doors to all opinions, even those that are adversarial to them. In any case, we understand that the allegation of facts that are profusely contained in the judicial inquiry and that were even published through an initiative of the Republic's Attorney General's Office can in no way be seen as an offence against the right to image and a good name of the subjects in the process.
Finally, concerning the damage to the right to benefit from the penal process' guarantees, namely the right to a fair investigation and the right to freedom and safety, we still cannot understand how it is possible for said rights to be offended by the contents of a book that describes facts from the investigation, although it parts from the interpretation that the Public Ministry's magistrates made of those facts, yet offering based, solidly built and logical interpretations.

We thus reach a point where it seems to be important to stress the following:
The indicative facts that led to the applicants' constitution as arguidos within the inquiry were later on not valued by the Public Ministry's prosecutors in order to lead to a criminal accusation, but those very same facts, seen through another prism and with another base, may lead to a different conclusion from that which was attained by those same prosecutors. Suggestive data (indications) that were deemed to be insufficient in terms of evidence in a criminal investigation, can be appreciated in a different way, in an interpretation that can legitimately be published as a book, as long as the interpretation does not offend any fundamental rights of anyone involved. We have written it above already, in our view that said interpretation does not offend the applicants' rights.
Il est clair que cet arrêt réduit à zéro la déclaration selon laquelle le rapport final des procureurs pouvait être un certificat d'innocence. Il n'est qu'une interprétation des données matérielles recueillies sans plus de validité que celle de GA et même, si on prend en compte les années d'expérience de ce dernier, peut-être moins valable. Le rapport final n'a pas supprimé les soupçons qui légalement pèsent sur les épaules des MC.

In a concise manner -
The book at stake in this process, Maddie - the Truth of the Lie, which was written by the defendant Dr. Gonçalo Amaral, has the main motivation of defending his personal and professional honour, as the author points out right away in the preface and throughout his text.
The contents of the book does not offend any of the applicants' fundamental rights.
The exercise of its writing and publication is included in the constitutional rights that are secured to everyone by the European Convention on Human Rights and by the Portuguese Republic's Constitution, namely in its articles 37º and 38º.

As we arrive at this point, we conclude that the decision that was made by the Court a quo must be revoked, and the analysis of the other issues that are placed under appeal are not justified, as they are considered prejudiced.
The appeal by defendant Dr. Gonçalo Amaral is sustained. The other appeals are not taken into consideration, as it is understood that their appreciation is prejudiced - article 660-2, of the CPC.

III - Decision

In harmony with what is written above, under the terms of the cited dispositions, the judges at this Appeal's Court declare the validity of the appeal filed by defendant Dr. Goncalo Amaral, and the sentence of the Court a quo is revoked, its disposition replaced by the following :
The injunction is deemed not valid because it was not proved.
Furthermore we deliberate that we do not acknowledge the rest of the appeals.
Costs to be paid by the appealed parties [the McCann couple and their three children].

Lisbon and Appeals Court, 14.10.2010
The Appellate Court Judges,
Francisco Bruto da Costa
Catarina Arelo Manso

Antonio Valente 


(1) Non, ils n'ont cessé d'être témoins assistés que lorsque l'affaire a été classée, en juillet 2008.