Première partie ici
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.
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.
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.
Thus the success of the injunction depends on two requisites:
Os Direitos da Defesa
As it has to be, jurisprudence strongly reflects that general tutelage and the defence of citizens' good name and image.
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.
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.
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.
On est loin de l'accusation d'avoir écrit le livre pour faire de l'argent ou pour faire souffrir les MC.
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 ...
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 (...).
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.
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).
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.
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.
In a concise manner -
The contents of the book does not offend any of the applicants' fundamental rights.
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.
III - Decision
(1) Non, ils n'ont cessé d'être témoins assistés que lorsque l'affaire a été classée, en juillet 2008.