And the winner is....Court of Lisbon’s decision on the McCanns’ civil process against Gonçalo Amaral.

Zizi's Presscuts



April 20, 2016

AND THE WINNER IS …

 

Hours ago, the “Justice for Gonçalo Amaral Project” (PJGA)* posted  a short  communiqué, together with a translation of the last paragraphs of the Appellate

Court of Lisbon’s decision on the McCanns’ civil process against Gonçalo Amaral.

The three Appeal Court judges  overturned the previous (lower) court decision which was (controversially) favourable to the McCanns’.

In their view, Gonçalo Amaral’s  book “The Truth of the Lie”, was about “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….”

And so, they decided, “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].” (quote/unquote).

For other, equally relevant passages, click here .

                Clarence Mitchell and Kate McCann in full PR swing

Translating the “legalese” into common parlance – and reading in between the lines – probably what the judges meant was, that Maria de Melo e Castro – the lower court judge accountable for last year’s legal blunder on behalf of the plaintiffs – the McCanns’ top-dog barristers as well as their reputation manager and strategist –  Clarence Mitchell  – were now all free to “go and suck on it…”.


Isabel Duarte  – one of the couple’s up-upmarket lawyers – remarked that “she and the McCanns were obviously disappointed but  that she was not surprised because one of the judges ruled in favour of a previous appeal overturning a ban on the book.”



            Isabel Duarte: disappointed

What Isabel Duarte did not tell us was, that  Emeritus Professor Bruto da Costa  – a former senior judge and Councillor of State – was not there to appreciate the new appeal. Not on this occasion. Therefore – according to the same logic – the McCanns should have won the case.
Just as well they did not. That would have been an embarassment to the Portuguese Constitution and the United Nations Universal Declaration of Human Rights.

Clarence Mitchell, was so completely knocked out by the “bad news”, that at first he was in no mood, to issue one of his trademark ex-cathedra statements.
He did eventually got up,  dusted himself off and blurted: “The process is not over yet. It is a matter for Kate and Gerry’s lawyers to deal with.”



            Mitchell:press/releasing

The beautiful couple on the other hand, were described by their neighbours as “seething over the ruling” . Not a pretty sight, you can imagine. They were probably  wondering how their top-notch advisers and risk assessors managed to get it so wrong.
Where do they go from here?

Since money is not a problem for the McCanns, they will have another “shot” at Gonçalo Amaral – namely by launching an appeal to the Portuguese Supreme Court. That much is clear from  their reputation-manager’s words. One has to smile at his  gamesmanship pedigree and vindictive determination.
If their appeal is dismissed – as it is likely to – the VIPs have the option to take the “sardine munchers” all the way to the European Court of Human Rights. No fish bones there, hopefully!


      Tony Parsons: “Keep your stupid, sardine-munching mouth shut!”

Meanwhile, let us all sit back, relax and wait to see if the Portuguese Supreme Court of Justice has a price and/or is susceptible to be intimidated by the antipathic but sympathetic British prime-minister  and/or indeed, is gullible enough to be impressed in the interim by Scotland Yard’s media stagings – and press releases.

In the latter context, a friend of ours (conspiracy theorist to the core) expects a “Madeleine look-alike – if not the real thing – to surface any time soon, or otherwise a patsy to be framed by Scotland Yard for a crime someone else committed! Ever heard of “Operation Mincemeat ?” Sic erat scriptum.  Read it with a pinch of salt …

The McCanns are probably confident of “hitting the target”, which – given their funds, their past track, influential  lawyers and friends in high places – is always a possibility. Mathematically at least, the probability of any conceivable event is always greater than zero.

UPDATE
Less than forty-eight hours after comprehensively loosing £433,000  in the aforementioned civil process “a spokesman for the couple warned anyone caught selling the book in the UK would face legal action“.


Gonçalo Amaral – about to counter-sue the VIP couple for “moral and financial losses” – was quick to respond:
“What the McCanns are doing is illegal. I am in talks with my publishers for a book in the English language. The McCanns will learn to respect the right to opinion and freedom of expression”.


Love or loath Gonçalo Amaral, you have to admire his Stoicism – his refusal to stand aside for the Mammonites.
Aaaaamen!

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, http://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].


 FOOTNOTES
* Copied with tacit agreement from the PJGA . The  PJGA – unlike Madeleine Fund – is a not-for-profit association set up to fund Goncalo Amaral after his assets were frozen by the McCanns’ preventing him from defending himself.
 © Special thanks to Reuters  and other authors for the photos.

 
 
https://zizipresscuts.wordpress.com/

Thanks for OP.   I am not surprised they want to control the internet.   Without it we would never have learned all we have.

Hacked Off - yeah I am.

plebgate wrote:Thanks for OP.   I am not surprised they want to control the internet.   Without it we would never have learned all we have.

This is the biggest threat to the freedom of mankind.

It's going to become very Orwellian if we let them without a fight.

4th July, 2016.   This was a possibe date worked out by Textusa apparently as to when we might hear something about SC appeal.

Any news yet?

How did she calculate this prediction?  Astrology?  Reading the tea-leaves?  Lunar phases?  Sunspot activity?  The end of Ramadan?  Summer holidays?  Train time-table?  The price of fish?

I can't see any movement here until at least next September, if then.  It's like waiting for the 'Untold Story..'