19 Apr 2016

Translation of the Conclusions of the Appellate Court's Decision



This is a translation of numbers 3 and 4 of the Appellate Court of Lisbon's decision in the case that has been filed by the McCann family against Gonçalo Amaral and others. 

This blog would like to express its heartfelt gratitude to every one of you who have supported Gonçalo Amaral through this case. It is not over; but this is, without doubt, a significant and relevant decision that boosts our confidence in the Portuguese Courts and in a system that may be excruciatingly slow but ultimately serves its purpose of performing Justice. 

Thank you. 



3. Under articles 635, number 4, and 639, number 1, of the Civil Process Code, the matter of the appeal is delimited by the appellant’s conclusions.

The matter subject to decision is thus essentially centred on the evaluation of the alleged wrongfulness and the responsibility that derives from it, imputed to the 1st defendant [Gonçalo Amaral], now the appellant, of the publication, by the 2nd and the 3rd defendants, equally appellants, of the works at stake.

As far as personality rights are concerned, article 26, number 1, of the Constitution states that everyone has a right to a good name and reputation and to the protection of the intimacy of private and family life.

The same fundamental law protects, with equal dignity, freedom of expression, by stating under number 1 of article 37 that everyone has a right to express and to publicise their thoughts in words, image or by any other means, as well as the right to inform, to inform oneself and to be informed, without impediment or discrimination.

And also, under number 2 of article 38, freedom of press, by consecrating freedom of expression and of creation by journalists and their collaborators.

Number 2 of article 18 establishes, in the case of conflict between fundamental rights, that any legal restrictions to those rights must be limited to whatever is necessary in order to safeguard other rights or interests that are constitutionally protected.

On the other hand, in ordinary law, article 70 of the Civil Code consecrates, as a principle, that the law protects individuals against any illicit offence or threat to offend their physical or moral integrity, while article 80 of the same diploma states that everyone must respect someone else’s intimacy of private life.

Whenever there is a collision of rights that are equal or of the same kind, the holders must, under number 1 of article 335, cede as necessary in order for all of them to produce their effect equally, without greater damage for any one of them – while (under number 2 of the same article), if the rights are not equal or are of different species, the one that is considered superior must prevail.

Therefore, and as the dominant jurisprudence understands the matter:

“One of the limits to the freedom of information, which therefore is not an absolute right, is the safeguard of the right to a good name. Journalists, the media, are bound by ethical and deontological duties, and duties of rigour and objectivity.

- The media have the right, the social function, of spreading news and giving critical or non-critical opinions, and it is important that they do so with respect for the truth and for someone else’s intangible rights, as are personality rights.

- The right to honour, in a broader sense, and the right to freedom of press and of opinion are traditional areas of conflict.

- Criticism has a boundary in the rights of its targets, but it remains legitimate if it is sharp, steely, as long as it is not injurious, because so often therein lies the style of the author.

- To criticise implies to reproach, fault-finding that is aired in the media only stops being legitimate as a manifestation of individual freedom when it expresses objective antijuricity, violating rights that are extremely personal and which effect, in a more or less lasting manner according to men’s memory, assets that need to be preserved as are the rights here at stake, to honour, to a good name and to a social standing” (decision by the Superior Court, dated 20/1/2010, www.dgsi.pt)

In the case at hand, apart from the reporting of the facts that are part of the inquiry into the disappearance of Madeleine McCann, an analysis of the book and of the rest of the published material finds that the now 1st appellant [Gonçalo Amaral] therein sustains the thesis that an abduction did not take place, but rather the accidental death of the child, followed by a cover-up – through the concealment of her cadaver and the simulation of that crime – by plaintiffs Gerald and Kate McCann, now the subjects of the appeal.

It results from the aforementioned publication that the means of evidence and the indicia that it reports to are, essentially, those referred to and documented in the respective criminal enquiry.

Nevertheless, the exposed thesis, that the child died accidentally and that fact was concealed by the parents, who have broadcast, in order to deceive, the hypothesis of an abduction, is not new – the same is equally contained in the report which is mentioned under number 9 of the proven facts, determining the arguido constitution of said subjects of appeal [Kate and Gerry McCann], and was, after a copy of the inquiry was made public, published in the media (numbers 65 and 66 of proven facts).

As was stated in the decision, from this Section, concerning the appended injunction, the 1st appellant [Gonçalo Amaral], wanted, through this book – because the institution to which he was bound did not allow him to reply to attacks against his pride and honour, as a professional of the criminal investigation police – to expose his vision of the facts, and therefore the publication of said book has to be considered a legitimate exercise of the right to an opinion.

And because from the proved matter results that – apart from it being about facts that have been profusely published in the inquiry and even publicised through an initiative of the Republic’s Prosecutor General’s Office – it was the subjects of the appeal themselves [Kate and Gerry McCann] who, benefiting from an easy access, multiplied themselves in interviews and interventions in national and international media, one must conclude that it was them who, voluntarily, limited their rights to reservation and to the intimacy of private life.

By proceeding in this manner, they opened the way for anyone to equally express an opinion about the case, contradicting their thesis – without losing their right to exercise a legitimate, and constitutionally consecrated, right to an opinion and a freedom of expression of thought.

On the other hand, we cannot see how the right of the subjects of this appeal [Kate and Gerry McCann] to benefit, following their constitution as arguidos, from the guarantees of the penal process – including the right to a fair investigation and the right to freedom and safety – may be offended by the contents of a book which, in its essence, describes and interprets facts that are part of an inquiry whose contents have been published.

Nothing opposes that, although they have not been deemed sufficient to lead to a criminal charge, said facts are subject to diverse appreciation, namely in a work of literary nature.

Therefore, and because it is contained within consecrated rights, namely under numbers 37 and 38 of the Constitution, the publication at stake must be considered lawful.

Nonetheless, it is understood, in the decision under appeal, that because the 1st appellant, Gonçalo Amaral, was, until October 2, 2007, the coordinator of the criminal investigation into the disappearance of Madeleine McCann, he was, after his retirement on the 1st of July, 2008, subject to the duties of secrecy and reserve that are imposed to the employees that serve the Polícia Judiciária.

And, under such terms, although the introductory note in the book invokes personal reasons, in a situation of conflict with the rights to a good name and reputation of the subjects of the appeal, the appellant [Gonçalo Amaral] could not benefit, faced with the results of the investigation, of a broad and full freedom of expression – and thus his conduct would be unlawful, under article 484 of the Civil Code.

From what was above said about this matter, it is clearly understood that such argumentation cannot be sustained.

In effect, and independently of the reasons invoked by the appellant for the publication, it is hardly understandable that an employee, even more a retired one, would have to keep said duties of secrecy and reserve, thus being limited in the exercise of his right to an opinion, concerning the interpretation of facts that were already made public by the judiciary authority, and widely debated (in fact, largely by initiative of the intervenients themselves) in the national and international media.

In the absence of its primordial presupposition it must therefore be concluded against the previous decision, due to the lack of precedence of any of the requests that have been formulated by the current subjects of the appeal [Kate and Gerry McCann] – while the re-appreciation of the matter of fact that had been secondarily requested remains impaired.

4. From the above mentioned, it is agreed, in accordance with both appeals, to revoke the appealed decision and, considering the action against them to be unfounded, to acquit the appealing plaintiffs of the totality of the requests. The costs, in both instances [courts] are to be paid by the appealed subjects [Kate and Gerry McCann].

45 comments:

  1. Joyous news, well worth waiting for.

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  2. Anonymous4:12 pm

    Blessings to mr Amaral.

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  3. Long live Dr Amaral!!! Long live the Portuguese Court of Appeal!!!

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  4. Anonymous4:19 pm

    At last justice for this dignified man, Madeleine's most ardent supporter.

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  5. congratulations senior amaral

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  6. Fantastic news on Joana's birthday! Thank you all so much for your hard work bringing us this news and translating it so quickly x

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  7. Congratulations!!!

    Hopefully justice for Madeleine follows.

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  8. Montie's Python4:57 pm

    Congratulations to Mr Amaral for never giving up, and a big pat on the back to all the people that stuck by him and supported him continuously. This has now restored my faith in the justice system.

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  9. Anonymous5:10 pm

    God Bless Goncalo Amaral,hope this will be the beginning of the end of those pair,& hopefully there will be justice for Madeleine & yourself.x

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  10. Anonymous5:23 pm

    At last Justice for Mr. Amaral. Never forget that we the people of the world are here to stand by your side as and when you need us. God Bless you Sir.

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  11. So pleased for Mr Amaral!!

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  12. So pleased for Mr Amaral fantastic news!

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  13. jennie stone5:26 pm

    congratulations for Dr G Amaral this is exhilarating news. God bless and best wishes for your future.

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  14. Anonymous5:27 pm

    Fantastic news, good luck Goncalo Amaral.

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  15. Fantastic news! Good for you and your family,if you want to go after them we will back you all the way!

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  16. Anonymous5:35 pm

    Justice for a very honourable man. Well done Goncalo Amaral you have faced the trials with dignity and fortitude.

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  17. Congratulations Senor Amaral. This means a lot for freedom of speach, which is being threatened more an more at this time in history. Thank you for staying strong.

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  18. Anonymous5:53 pm

    Congratulations Sir! Sorry that you had to go through this in the first place. A huge thank you to all at PJGA who have worked tirelessly from the beginning to help, support and inform. Today is a good day :-)

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    Replies
    1. Anonymous6:28 pm

      So true

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    2. Anonymous7:10 pm

      Great news Amaral...stay strong with the truth of the lie...I am with u all of the way with justice for Madeline...I personaly believe evidence found should have brought forward a conviction as you do! I really don't understand why the parents haven't been brought to justice in one shape or form....

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  19. Anonymous5:56 pm

    ''one must conclude that it was them who, voluntarily, limited their rights to reservation and to the intimacy of private life.''

    With gagging orders in place in the UK & injunctions, plus a massively expensive Leveson enquiry, perhaps the UK should sit up and take note.

    Of course all this will fall as great expense for the McCanns, but worry not, there are plenty who will pay up in order that they can sell their story - as so the merry go round continues.

    Good luck to Goncalo Amaral and may he and as importantly his family go forward and please don't look back. Don't comment. Have a good life. You have paid the price, beyond money terms.

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  20. Congratulations to Senor Amaral and his family. Thank you for continuing to give Maddie a voice and the justice she deserves.

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  21. Anonymous6:04 pm

    I am so relieved - are the scales of justice balancing at last? So happy for Goncalo.
    Louisee

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  22. Anonymous6:26 pm

    Congratulations Mr Amaral Great news

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  23. Anonymous6:28 pm

    So happy for this man who has lost everything and now can pick up the pieces of his life.
    All because he wrote a book using the actual Police Files and put it all together and letting the world know the truth.
    If the parents had been more open with the Portuguese Police and less obstructive this case would have been solved by now.

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  24. Alison Lloyd6:48 pm

    Wonderful, wonderful news. Many congratulations to Dr Amaral. It has seemed a long, long process to all his friends and supporters, but must have seemed an eternity to him. Please let us know if any more money is needed.

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  25. Parabéns Gonçalo, e a ti também Sofia L. pelo trabalho todo que fizeste para que se chegasse a este resultado. muito feliz :) bjns

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  26. Anonymous9:46 pm

    Félicitations! Mais s'il vous plait, n'attaquez pas les Mccann en justice, cela vous porterait préjudice, soyez plus digne qu'eux!
    Encore bravo/

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  27. I rarely cry but had tears of joy on the way home from a 12 hour shift when I heard on the radio. Well done Portugal and stay strong Dr. Amaral.

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  28. Anonymous10:43 pm

    I am delighted to hear the news. Dr Amaral is a very brave man, dedicated to his work and the cause of justice. He stands head and shoulders above his persecutors. Nine long and tortuous years fighting this terrible injustice shows incredible strength of character. I raise a glass to you, Sir.

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  29. Anonymous11:26 pm

    Fantastic news here today. What a torment this has been for you. We are all behind you and I desperately need an English version of your book, from wherever I can obtain one. Love and best wishes to Amaral and family. We all await the next newsflash.

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  30. Amazing news it's made my day!

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  31. Anonymous12:50 am

    "Facts that were already made public by the judiciary authority, and widely debated (in fact, largely by initiative of the intervenients themselves) in the national and international media."

    AND SO THE McCANNS' GOT A MELON INSTEAD OF A MILLION!

    This is no laughing matter but do you mind if I have a giggle? Oh dear!

    The legal rhetoric of Isabel Duarte, Rogério Alves - not to mention Marinho Pinto (affectionately known in the UK as "The Photoshop") - all to no avail.

    Now, seriously:

    Our total and unconditional admiration to the three Portuguese senior judges who were capable to see through a barrage of legal and media stratagems engineered by the McCanns' "Reputation Management Department" (read: Clarence Mitchell) and by doing so have honoured Portugal and its Constitution.

    We truly wonder what Clarence Mitchell (affectionately known among some of his former media colleagues in the UK as "Mickey Mouse") is thinking right now?

    Hello "Mickey"! Are you there?

    All about "Mickey's" front stage track here:

    https://uk.linkedin.com/in/clarence-mitchell-58746b42

    ; ) For his "back stage" track you need to imagine. He is not telling us anything but I digress!

    A big hug to Dr. Amaral - not forgetting Astro, the one and only Joana Morais, "The Professor", and all those at the PJGA - and beyond - who have worked so hard all these years against Mammon to upheld Justice for Dr. G. Amaral!

    God bless you All!

    Zizi Duarte

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  32. Anonymous3:16 am

    Congratulations Snr Amaral; you deserve huge respect for everything you have been put through. You have gone way beyond the call of duty in seeking justice for Madeleine; you should never have been treated so badly. I have always had faith in you; now I have more faith in the higher Appeals Courts.Like many others, I made a contribution to PJGA because I have so much respect for you and for your tireless pursuit of justice.

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  33. Justice still works in many ways, this is such good news. I have faith in G Amaral, a good man. Let us still hope for justice for Madeleine.

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  34. Anonymous11:05 am

    Brilliant news! hold your head high Sr Amaral, a man who stood up for what he believed in despite the opposition trying to ruin him. Wishing you and your family all the best you certainly deserve it.

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  35. Anonymous11:33 am

    Thrilled with the result GA! May this be the first step in which the truth will finally see the light of day! God bless you xx

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  36. The truth shall be known. Congratulations Sr. Amaral!

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  37. Anonymous3:45 pm

    ¡Enhorabuena!
    ¡Felicidades Dr. Amaral!

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  38. Anonymous7:23 pm

    May you continue to go from strength to strength Dr Amaral.

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  39. Anonymous10:17 pm

    Por vezes dá gosto ser Português.
    Obrigado Dr. Gonçalo Amaral!

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  40. Anonymous1:13 pm

    Parabéns Dr Gonçalo S Amaral. Não há palavras para lhe descrever o meu contentamento quando soube da notícia. Mantenha a perseverança e a resiliência até ao fim. É na adversidade que o Homem conhece o preço do bem mas também o sabor da vitória. Tem um exercito de pessoas na sua retaguarda que só ficarão saciadas quando toda a verdade for conhecida. O quê e onde já sabemos falta saber quem e como.
    Alexandra

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  41. Fabulous news!!

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  42. Anonymous2:55 pm

    ; ) Specially for you, I think!

    https://zizipresscuts.wordpress.com/

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