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McCanns v Amaral trial is NOT LIBEL!

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by OxfordBloo on 19.05.15 16:44

@Joss wrote:
@OxfordBloo wrote:
@Joss wrote:
@OxfordBloo wrote:
@Joss wrote:
@OxfordBloo wrote:
@Joss wrote:IF the latest judgement re Goncalo Amaral's damages trial was legal and correct, surely GA would have no case for Appeal?
Appeal to the court of second instance is guaranteed on points of law but not on points of agreed fact.
What agreed fact?

A large part of the judgement is a list if "facts" found by the first court. These are matters of re ord and are not appeallable to the next level. What is appealable is the interpretation of the matters of law.
Could you please provide a link to the portugese laws as to what you state here in that regard, thanks.

That is what I have been informed by my Portuguese legal source. I added it for illustration. We must wait to find out what grounds of appeal might be cited. Then we will know if appeal is possible on law or fact. My advice I that the judge if the first instance is the arbiter of fact.
Oh, ok.

This from GA's interview post verdict:

Apart from the payment, the court decreed the prohibition of the sale of new editions of the book Maddie: A Verdade da Mentira. Nevertheless, the Appellate Court had decided to annul this prohibition back in 2010…

This court has not undone what had been decided by Lisbon’s Appellate Court within the injunction that was filed by the complainants. It should be clarified that the only decision that has, so far, become effective is that of Lisbon’s Appellate Court. That is the only one that is in force, the rest is still subject to appeal and it will take a few years to come into force, while I hope that our superior courts will see this differently from the lower court. This is just the judicial system working, therefore we need to remain calm.

In a more practical manner, I can say that the claimants, the McCanns, haven’t won anything yet, they only lost, namely with the decision from Lisbon’s Appellate Court, which is very clear in stating that the rights that have been violated were mine, that I, within the exercise of freedom of speech, could write the book and practiced no illicit action.


With this prohibition, are you forbidden from emitting an opinion about the case or about the McCann couple?

I am a free man, and like any other citizen in this country, I have the right to express my opinions. I was a Criminal Investigation coordinator, a policeman, and there is no reserve duty, a functional or merely instrumental thing, from the exercise of a profession, that superimposes a fundamental right and freedom of expression. To state that the duty of reserve limits freedom of expression for life, or even during the exercise of the profession of policeman, is to elevate that duty, which is merely administrative, above freedom of expression and fundamental rights, consecrated in the Constitution of the Portuguese Republic, in the Universal Declaration of Human Rights and on the European Convention of Human Rights.
It is notable that Amaral has not, since the judgement, repeated his assertion that the McCann's hid Madeleine's body.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by plebgate on 19.05.15 17:09

Of course he isn't going to say anything if it is going to appeal?

He will have been advised by his legal team to keep quiet.  Surely as you seem to understand the law so well Oxfordbloo, you would have been able to work that out.

Heck, Mrs' lawyer told her not to answer the 48 questions - she listened to them, even though her beautiful little girl had disappeared.

Do you really expect him to repeat anything until this is all over?

Sheesh.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by Joss on 19.05.15 17:14

@plebgate wrote:Of course he isn't going to say anything if it is going to appeal?

He will have been advised by his legal team to keep quiet.  Surely as you seem to understand the law so well Oxfordbloo, you would have been able to work that out.

Heck, Mrs' lawyer told her not to answer the 48 questions - she listened to them, even though her beautiful little girl had disappeared.

Do you really expect him to repeat anything until this is all over?

Sheesh.
Exactly.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by OxfordBloo on 19.05.15 17:24

@plebgate wrote:Of course he isn't going to say anything if it is going to appeal?

He will have been advised by his legal team to keep quiet.  Surely as you seem to understand the law so well Oxfordbloo, you would have been able to work that out.

Heck, Mrs' lawyer told her not to answer the 48 questions - she listened to them, even though her beautiful little girl had disappeared.

Do you really expect him to repeat anything until this is all over?

Sheesh.
That is what I mean. He knows that as the judgement stands, he cannot repeat information gained from his employment, or accuse people of crimes.

Now this may be overturned on appeal, but he is currently abiding by the terms of the judgement.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by plebgate on 19.05.15 17:26

Of course he is - what's your point?

The judgement stands until it reaches the court of appeal.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by OxfordBloo on 19.05.15 17:42

@plebgate wrote:Of course he is - what's your point?

The judgement stands until it reaches the court of appeal.
I was pointing out tbat his careful behaviour contradicts his statement:

With this prohibition, are you forbidden from emitting an opinion about the case or about the McCann couple?

I am a free man, and like any other citizen in this country, I have the right to express my opinions. I was a Criminal Investigation coordinator, a policeman, and there is no reserve duty, a functional or merely instrumental thing, from the exercise of a profession, that superimposes a fundamental right and freedom of expression. To state that the duty of reserve limits freedom of expression for life, or even during the exercise of the profession of policeman, is to elevate that duty, which is merely administrative, above freedom of expression and fundamental rights, consecrated in the Constitution of the Portuguese Republic, in the Universal Declaration of Human Rights and on the European Convention of Human Rights.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by plebgate on 19.05.15 17:54

@OxfordBloo wrote:
@plebgate wrote:Of course he is - what's your point?

The judgement stands until it reaches the court of appeal.
I was pointing out tbat his careful behaviour contradicts his statement:

With this prohibition, are you forbidden from emitting an opinion about the case or about the McCann couple?

I am a free man, and like any other citizen in this country, I have the right to express my opinions. I was a Criminal Investigation coordinator, a policeman, and there is no reserve duty, a functional or merely instrumental thing, from the exercise of a profession, that superimposes a fundamental right and freedom of expression. To state that the duty of reserve limits freedom of expression for life, or even during the exercise of the profession of policeman, is to elevate that duty, which is merely administrative, above freedom of expression and fundamental rights, consecrated in the Constitution of the Portuguese Republic, in the Universal Declaration of Human Rights and on the European Convention of Human Rights.
He answered the question rather well IMO.   He listened to his legal team and answered very deftly without leaving himself open to a contempt of court accusation.  

Sounds to me as though you might have liked him to put himself in that position Oxfordbloo although of course he has studied law himself and will be well aware that some peeps might well have studied his every word possibly hoping to complain to the courts.

Too clever for that imo.





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Re: McCanns v Amaral trial is NOT LIBEL!

Post by Joss on 19.05.15 18:00

@OxfordBloo wrote:
@plebgate wrote:Of course he is - what's your point?

The judgement stands until it reaches the court of appeal.
I was pointing out tbat his careful behaviour contradicts his statement:

With this prohibition, are you forbidden from emitting an opinion about the case or about the McCann couple?

I am a free man, and like any other citizen in this country, I have the right to express my opinions. I was a Criminal Investigation coordinator, a policeman, and there is no reserve duty, a functional or merely instrumental thing, from the exercise of a profession, that superimposes a fundamental right and freedom of expression. To state that the duty of reserve limits freedom of expression for life, or even during the exercise of the profession of policeman, is to elevate that duty, which is merely administrative, above freedom of expression and fundamental rights, consecrated in the Constitution of the Portuguese Republic, in the Universal Declaration of Human Rights and on the European Convention of Human Rights.
What "careful behaviour" are you speaking about? Goncalo Amaral has been fairly quiet & dignified  throughout this entire ordeal of approx. 6 years, as far as i know.
I'm not really sure what you're getting at either?

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by OxfordBloo on 19.05.15 18:04

@plebgate wrote:
@OxfordBloo wrote:
@plebgate wrote:Of course he is - what's your point?

The judgement stands until it reaches the court of appeal.
I was pointing out tbat his careful behaviour contradicts his statement:

With this prohibition, are you forbidden from emitting an opinion about the case or about the McCann couple?

I am a free man, and like any other citizen in this country, I have the right to express my opinions. I was a Criminal Investigation coordinator, a policeman, and there is no reserve duty, a functional or merely instrumental thing, from the exercise of a profession, that superimposes a fundamental right and freedom of expression. To state that the duty of reserve limits freedom of expression for life, or even during the exercise of the profession of policeman, is to elevate that duty, which is merely administrative, above freedom of expression and fundamental rights, consecrated in the Constitution of the Portuguese Republic, in the Universal Declaration of Human Rights and on the European Convention of Human Rights.
He answered the question rather well IMO.   He listened to his legal team and answered very deftly without leaving himself open to a contempt of court accusation.  

Sounds to me as though you might have liked him to put himself in that position Oxfordbloo although of course he has studied law himself and will be well aware that some peeps might well have studied his every word possibly hoping to complain to the courts.

Too clever for that imo.




I was impressed with his use of words.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by OxfordBloo on 21.05.15 7:43

I am now back at the computer that has the judgement saved on it.

The whole case relies on Section 10 of the European Convention of Human Rights which is part of Portuguese Law:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

As can be seen there are two paragraphs in this article, the firat creating a Right, and the second listing valid limitations to that Right.

The important p-art of the limitation for this case is the part of the limitation:

"The exercise of these freedoms,..., may be subject to such formalities, conditions, restrictions or penalties ... necessary in a democratic society, ..., for the prevention of, ...,  the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

From the phrase "for the prevention of, ...,  the disclosure of information received in confidence" the Judge derives the right of the McCanns to not be harmed by the disclosure of confidential evidence gained in the pursuance of a police career.

From the phrase "for maintaining the authority and impartiality of the judiciary." she argues that officers of the law have a duty to maintain the innocence of unconvicted individuals.

She finds later that Amaral is bound by confidentiality even in retirement- ceasing to work as a p[olice officer does not relieve their duty to protect confidential information; and that he also retains the duty to avoid accusing these not convicted of being guilty. 

She argues that his privileged position means that he may not act as freely as an ordinary citizen without privilege might. This is why only Amaral was found liable whereas the Press, Publisher and TV channel were not.

She finds that there were elements in Amaral's book that originated from his confidential position and not from the published files, and finds as a matter of fact, directly quoting the book and his TV interviews, that he maintained that the Mccanns were guilty of a crime when the fact was that they were still presumed innocent by the Portugese Judicial system.

I am not supporting these views, merely pointing out that that is the argument clearly followed by the judge in the publioshed case summary.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by BlueBag on 21.05.15 8:08

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

In essence... you have free speech and opinion unless the authorities decide you don't.

Section 2 is to stop whistleblowers.

Overall it's meaningless with regards freedom of speech.

Free speech is the hinge pin of a free society.

We don't have free speech.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by OxfordBloo on 21.05.15 8:46

@BlueBag wrote:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

In essence... you have free speech and opinion unless the authorities decide you don't.

Section 2 is to stop whistleblowers.

Overall it's meaningless with regards freedom of speech.

Free speech is the hinge pin of a free society.

We don't have free speech.
"Free  Speech" is a social construct and is dependent on its social definition.

In Europe that is defined by Article 10 above.

The Judge is required to interpret the law as it is written, not against some extra-legal claim for an absolute "free speech".

It is worth pointing out that very similar restrictions apply in any other country, including the USA.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by Joss on 21.05.15 11:28

@OxfordBloo wrote:I am now back at the computer that has the judgement saved on it.

The whole case relies on Section 10 of the European Convention of Human Rights which is part of Portuguese Law:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

As can be seen there are two paragraphs in this article, the firat creating a Right, and the second listing valid limitations to that Right.

The important p-art of the limitation for this case is the part of the limitation:

"The exercise of these freedoms,..., may be subject to such formalities, conditions, restrictions or penalties ... necessary in a democratic society, ..., for the prevention of, ...,  the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

From the phrase "for the prevention of, ...,  the disclosure of information received in confidence" the Judge derives the right of the McCanns to not be harmed by the disclosure of confidential evidence gained in the pursuance of a police career.

From the phrase "for maintaining the authority and impartiality of the judiciary." she argues that officers of the law have a duty to maintain the innocence of unconvicted individuals.

She finds later that Amaral is bound by confidentiality even in retirement- ceasing to work as a p[olice officer does not relieve their duty to protect confidential information; and that he also retains the duty to avoid accusing these not convicted of being guilty. 

She argues that his privileged position means that he may not act as freely as an ordinary citizen without privilege might. This is why only Amaral was found liable whereas the Press, Publisher and TV channel were not.

She finds that there were elements in Amaral's book that originated from his confidential position and not from the published files, and finds as a matter of fact, directly quoting the book and his TV interviews, that he maintained that the Mccanns were guilty of a crime when the fact was that they were still presumed innocent by the Portugese Judicial system.

I am not supporting these views, merely pointing out that that is the argument clearly followed by the judge in the publioshed case summary.
Could you cite where in Amaral's book the elements in it were from his confidential position, which Amaral actually denies being a retired PJ officer in his recent interview that he was not allowed to speak about the case or write a book about it, TIA. To repeat again this is what he said:
the British police were "invited" to sign a document of confidentiality that prevents them today from talking about what happened in Portugal or in England, a procedure that is not normal for police in England.
"It is normal in cases with the secret services, and that document is signed right at the beginning. Now with normal police, undertaking a criminal investigation, that doesn't happen," said Amaral.
Meaning that Goncalo Amaral had no such limitation of confidentiality to speak about or write about the case, and he was "normal police" investigating a crime and not secret services.
I actually think GA having studied law would know his legal position in the matter, and would of had legal counsel on the outcome of the judge's findings to speak as he did, IMO.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by BlueBag on 21.05.15 11:40

OxfordBloo

"Free  Speech" is a social construct and is dependent on its social definition.
In Europe that is defined by Article 10 above.
Yes.


Just pointing out how it is meaningless in reality if the authorities wish to gag people.

There is no such thing as limited free speech. It's free or it's not.

We are all safer if it's free.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by Joss on 21.05.15 11:56

Goncalo Amaral retains the same rights as every other Portugese citizen as far as his rights to speak about a matter, and which the Appeals court determined in the unbanning of his book previously.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by OxfordBloo on 21.05.15 12:24

@Joss wrote:
@OxfordBloo wrote:I am now back at the computer that has the judgement saved on it.

The whole case relies on Section 10 of the European Convention of Human Rights which is part of Portuguese Law:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

As can be seen there are two paragraphs in this article, the firat creating a Right, and the second listing valid limitations to that Right.

The important p-art of the limitation for this case is the part of the limitation:

"The exercise of these freedoms,..., may be subject to such formalities, conditions, restrictions or penalties ... necessary in a democratic society, ..., for the prevention of, ...,  the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

From the phrase "for the prevention of, ...,  the disclosure of information received in confidence" the Judge derives the right of the McCanns to not be harmed by the disclosure of confidential evidence gained in the pursuance of a police career.

From the phrase "for maintaining the authority and impartiality of the judiciary." she argues that officers of the law have a duty to maintain the innocence of unconvicted individuals.

She finds later that Amaral is bound by confidentiality even in retirement- ceasing to work as a p[olice officer does not relieve their duty to protect confidential information; and that he also retains the duty to avoid accusing these not convicted of being guilty. 

She argues that his privileged position means that he may not act as freely as an ordinary citizen without privilege might. This is why only Amaral was found liable whereas the Press, Publisher and TV channel were not.

She finds that there were elements in Amaral's book that originated from his confidential position and not from the published files, and finds as a matter of fact, directly quoting the book and his TV interviews, that he maintained that the Mccanns were guilty of a crime when the fact was that they were still presumed innocent by the Portugese Judicial system.

I am not supporting these views, merely pointing out that that is the argument clearly followed by the judge in the publioshed case summary.
Could you cite where in Amaral's book the elements in it were from his confidential position, which Amaral actually denies being a retired PJ officer in his recent interview that he was not allowed to speak about the case or write a book about it, TIA. To repeat again this is what he said:
the British police were "invited" to sign a document of confidentiality that prevents them today from talking about what happened in Portugal or in England, a procedure that is not normal for police in England.
"It is normal in cases with the secret services, and that document is signed right at the beginning. Now with normal police, undertaking a criminal investigation, that doesn't happen," said Amaral.
Meaning that Goncalo Amaral had no such limitation of confidentiality to speak about or write about the case, and he was "normal police" investigating a crime and not secret services.
I actually think GA having studied law would know his legal position in the matter, and would of had legal counsel on the outcome of the judge's findings to speak as he did, IMO.
From the Judgement:

"That defendant is not for in this judgement's view a mere commentator on minor criminal matters, a writer of police intrigues, or a criminologist. For our purposes he was obviously and necessarily a contributer to the authority and credibility of rhe opinion, the defendant was the coordinator of the criminal investigation into the disappearance of Madeleine McCann from the day of the event until 2 October 2007. It is this particular aspect (together with others) that concerns us - as is the coincidence in time between the filing of the investigation on the one hand, and the launch of the book, the interview and publication of the book sale on the other - are aspects that are part of the discussion on how to decide, in this case, the conflict between the right of the accused and the rights of authors."

She points out previously in 'findings of fact" that the book was published a scant three days after the release of the files:

"... the criminal investigation was given an order filing by the Attorney on 21 July 2008..."

"On 24 July 2008 the defendant in Lisbon launched a book written by him entitled "Maddie The Truth of the Lie", which were published several editions in several languages, namely French, Italian and German. · In Book the defendant developed the thesis that the 3rd author died in the apartment that the family occupied in Praia da Luz on the night of May 3, 2007, that death occurred as a result of an accident for which the 1st and 2nd authors are responsible that these authors simulated the child abduction and then subtracted the body concealed, everything to evade the action of justice."


and consequently, given the time required to write, proof read, print and publish the book, Amaral must necessarily relied on his confidential access to information rather than writing the book solely from the published files.


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Re: McCanns v Amaral trial is NOT LIBEL!

Post by OxfordBloo on 21.05.15 12:26

@BlueBag wrote:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

In essence... you have free speech and opinion unless the authorities decide you don't.

Section 2 is to stop whistleblowers.

Overall it's meaningless with regards freedom of speech.

Free speech is the hinge pin of a free society.

We don't have free speech.
Every jurisdiction that I have experience of has restrictions of some kind on "Free Speech", whether Libel, Sedition, Confidence or many other limitations. It so happens that Article 10 is the decription of the measure of Free Speech accorded to European residents.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by OxfordBloo on 21.05.15 12:31

@Joss wrote:Goncalo Amaral retains the same rights as every other Portugese citizen as far as his rights to speak about a matter, and which the Appeals court determined in the unbanning of his book previously.
He claims that, but the judgement explains why officers of the law have a duty above and beyond that of the ordinary citizen to protect privileged information and to maintain the innocence of any citizen.

The whole case rests on the fact that

1/ The book was published so soon after the release of the Files that Amaral must have used privileged sources, and

2/ He is on record of accusing the McCanns of being guilty of a criminal offence.

So she finds Amaral is guilty of this, and the Publishers, Newspapers and TV stations are not, because of the special position held by an officer of the State.

It is all there in the Judgement.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by BlueBag on 21.05.15 12:40

@OxfordBloo wrote:
and consequently, given the time required to write, proof read, print and publish the book, Amaral must necessarily relied on his confidential access to information rather than writing the book solely from the published files.

What he does in private with his knowledge of the case is of no consequence.

He didn't publish the book until AFTER the files were made public.

The judge was clutching at straws and I can see this getting overturned.

Like I said before, there is no law that says he couldn't publish the book and that HAS been tested in court.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by OxfordBloo on 21.05.15 12:51

@BlueBag wrote:
@OxfordBloo wrote:
and consequently, given the time required to write, proof read, print and publish the book, Amaral must necessarily relied on his confidential access to information rather than writing the book solely from the published files.

What he does in private with his knowledge of the case is of no consequence.

He didn't publish the book until AFTER the files were made public.

The judge was clutching at straws and I can see this getting overturned.

Like I said before, there is no law that says he couldn't publish the book and that HAS been tested in court.
I am only quoting from the Judgement.

She clearly finds as a matter of fact that 

1/ the book was published three days after the files were released
2/ that Amaral accused the Mccanns of being Guilty of an offence.

She finds as a matter of Law that

1/ Amaral owed a duty of confidence over material accrued in the course of his work, and 
2/ this duty was not terminated by his retirement- that the duty was enduring for life for officers of the state.

Consequently she finds that the Mccanns were damaged by his breach of the law and so due comprensation.

Now it may be that in the fullness of time the verdict may be overturned by a higher court, but the judgement is not capricious as the reasoning extends from a clear part of Portuguese Law- Article 10 of the Convention on Human Rights.

I am not saying that I support it, but I do believe that it is important to read the judgement in context in order to understand the reasoning behind it.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by Joss on 21.05.15 12:55

@OxfordBloo wrote:
@Joss wrote:Goncalo Amaral retains the same rights as every other Portugese citizen as far as his rights to speak about a matter, and which the Appeals court determined in the unbanning of his book previously.
He claims that, but the judgement explains why officers of the law have a duty above and beyond that of the ordinary citizen to protect privileged information and to maintain the innocence of any citizen.

The whole case rests on the fact that

1/ The book was published so soon after the release of the Files that Amaral must have used privileged sources, and

2/ He is on record of accusing the McCanns of being guilty of a criminal offence.

So she finds Amaral is guilty of this, and the Publishers, Newspapers and TV stations are not, because of the special position held by an officer of the State.

It is all there in the Judgement.
And this could all be disputed in the higher court of appeal, as to Goncalo Amaral's right to talk and publish about the investigation when he did, and in what he brought forth. He states in his book he retired from the PJ in order to write his book and clear his good name after the lies & the nasty accusations about the PJ in the McCann investigation. Did the judge prove anything about GA writing his book etc? Surely she would need evidence to back up those claims and not just make an assumption. We could go back & forth on this endlessly, but we do not know what the outcome of his appeal will be, that remains to be seen yet. And what exactly is determined in the law.
There may be legal loopholes we are not even be aware of, and would probably have to be a lawyer in the court of appeal to know all there is to understand about such a case.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by OxfordBloo on 21.05.15 14:01

@Joss wrote:
@OxfordBloo wrote:
@Joss wrote:Goncalo Amaral retains the same rights as every other Portugese citizen as far as his rights to speak about a matter, and which the Appeals court determined in the unbanning of his book previously.
He claims that, but the judgement explains why officers of the law have a duty above and beyond that of the ordinary citizen to protect privileged information and to maintain the innocence of any citizen.

The whole case rests on the fact that

1/ The book was published so soon after the release of the Files that Amaral must have used privileged sources, and

2/ He is on record of accusing the McCanns of being guilty of a criminal offence.

So she finds Amaral is guilty of this, and the Publishers, Newspapers and TV stations are not, because of the special position held by an officer of the State.

It is all there in the Judgement.
And this could all be disputed in the higher court of appeal, as to Goncalo Amaral's right to talk and publish about the investigation when he did, and in what he brought forth. He states in his book he retired from the PJ in order to write his book and clear his good name after the lies & the nasty accusations about the PJ in the McCann investigation. Did the judge prove anything about GA writing his book etc? Surely she would need evidence to back up those claims and not just make an assumption. We could go back & forth on this endlessly, but we do not know what the outcome of his appeal will be, that remains to be seen yet. And what exactly is determined in the law.
There may be legal loopholes we are not even be aware of, and would probably have to be a lawyer in the court of appeal to know all there is to understand about such a case.
I agree that we will not know the outcome until the judgement is either appealed or let stand, but a Judge does not have to "prove" anything. The job of the judge is to interpret the law. The facts of the case that have been found are quite clear and indisputable- Amaral did publish  material reliant on his status of privilege and did state that the Mccanns were guilty. Neither fact can be overturned. 

Amaral must therefore appeal on the grounds either that officers of the state are not bound by there access to privileged information or by their requirement to maintain innocence, or that privilege does not extend into retirement. If he cannot get a higher court to agree that, then it is difficult to see any other ground of appeal. 

The Judge derived the above not only from the ECHR but alos from Portuguese Administrative Law:


"In the case, Kate and Gerald McCann authors never ceased to benefit from presumption of innocence and the imperative of behavior that it puts on the national enforcement and judicial authorities and all its employees and agents.




"The police have the responsibility of defending democratic legality, protecting internal security and citizens' rights" [artº 272 of the Portuguese Constitution]."



"The Judicial Police is the upper body of criminal police assisting in the administration of justice, organized hierarchically depending on the Minister of Justice and supervised under the law "[article 1 of the Organic Law of the Judicial Police, approved by Decree-Law No. 275-A / 2000 of November 9 as amended by Decree-Law No. 235/2005, of 30 December, then in force]."



"Criminal investigation coordinators are criminal police authorities for the purposes of criminal procedural law [article 11 paragraph g) of the same Act]."



"Under the Disciplinary Regulations of the Judicial Police the duty of confidentiality is one of the general duties of members of the Judicial Police [paragraph e) of article 5 of the Regulation approved by Decree-Law No. 196/94, of 21 July]."

"Besides this general duty of confidentiality, the organic law imposes on employees in service at the judicial police a duty of reserve, precisely that "(...) can not make public disclosures related to lawsuits or reserved nature of the subject other than what is provided for herein on public information and preventive actions among the population and also the provisions of the criminal procedure law "[paragraph 2 of article 12]. Still admissible statements "(...) subject to prior authorization by the national director or the national Deputy Directors, on pain of disciplinary proceedings, without prejudice to any criminal liability that may place" [paragraph 3 of article 12]."

"This duty is a common functional requirement on Magistrates and the criminal police. As example, in the case of Prosecutors, the ordinary law postulates that it will remain after retirement, paragraph 7 of article 148 of the Statute that "retired officers are required to the reserve required by their condition."
It is a duty that is essential to the preservation of public confidence in the institutions of administration of justice. The reserve duty protects the purposes of criminal action, but also the physical, moral, freedom and the dignity of the target for the same." 




"Retired criminal investigation officers ... retain special rights, and as holders of an ID card for recognition of its quality and rights enjoyed [paragraphs 1 and and 2 of article 149 of the Organic Law of the Judicial Police and Ordinance No. 96/2002 31 January]."



The the Retirement Statute [approved by Decree-Law 498/72 of 9 December] establishes, from its original wording, the respective artº 74, paragraph 1, "the retired, and holder right to retirement pension, remains bound to the civil service, keeping the titles and the category of the position he held and the rights and duties that do not depend on active employment."









This is not my opinion, but merely translations from the Judgement outling the reasons the judge gave for her verdict.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by BlueBag on 21.05.15 14:25

Amaral said it was his opinion they had been involved in the concealment of a body.

That was the opinion also found in the PJ files.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by OxfordBloo on 21.05.15 14:41

@BlueBag wrote:Amaral said it was his opinion they had been involved in the concealment of a body.

That was the opinion also found in the PJ files.
He also makes many more substantial statements.

That aside, the judgement found that because of his position he was bound by more duties and obligations tban an ordinary citizen.

I have left the computer with the judgement on it but later I will quote from the judgement a clear case quoted by the judge of breaking his obligations.

I do really feel that people should read the judgement if they want to criticise it. It is minutely reasoned and it seems very difficult to avoid the conclusion reached by the judge once one sees the actual Portuguese Law quoted.

I expected the case to be thrown out but once I read the judgement in full, I began to understand the judge's reasoning.

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Re: McCanns v Amaral trial is NOT LIBEL!

Post by Joss on 21.05.15 14:55

@OxfordBloo wrote:
@BlueBag wrote:Amaral said it was his opinion they had been involved in the concealment of a body.

That was the opinion also found in the PJ files.
He also makes many more substantial statements.

That aside, the judgement found that because of his position he was bound by more duties and obligations tban an ordinary citizen.

I have left the computer with the judgement on it but later I will quote from the judgement a clear case quoted by the judge of breaking his obligations.

I do really feel that people should read the judgement if they want to criticise it. It is minutely reasoned and it seems very difficult to avoid the conclusion reached by the judge once one sees the actual Portuguese Law quoted.

I expected the case to be thrown out but once I read the judgement in full, I began to understand the judge's reasoning.
Where are you going with all of this, if i might ask you? You stated upthread that you had some kind of legal scource, would you not be better to discuss this with your scource, as they would be able to verify your position better? I am not sure, but i don't think any of us here know exactly what the appeals court will determine in this legal matter, and am not really sure what you exactly want to discuss  in this thread? If you are so sure about what you are saying, what is there to discuss?

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