Bingo! The Portuguese Supreme Court upheld the Appellate Court’s decision for the second time: 21.03.17 update.
by Zizi & Paula
“Good things come to those who wait…” © Photo: Mark Kehoe
Article 37 of the Portuguese Constitution
(Freedom of Expression and Information)
1. Everyone has the right to freely express and divulge his thoughts in words, images or by any other means, as well as the right to inform others, inform himself and be informed without hindrance or discrimination.
2. Exercise of these rights may not be hindered or limited by any type of censorship.
3. Infractions committed in the exercise of these rights are subject to the general principles of the criminal law or the law governing administrative offences, and the competence to consider them shall pertain to the courts of law or an independent administrative respectively, as laid down by law.
4. Every natural and legal person shall be equally and effectively ensured the right of reply and to make corrections, as well as the right of compensation for damages suffered.
The Portuguese Supreme Court upheld the previous Appellate Court Decision on behalf of Dr. Gonçalo Amaral! After much water had flown under the bridge it turned out “the Portuguese Constitution was not-for- sale”. (quote).
The Court’s adroit view was, that given a conflict between the right to honour of one party (good name and reputation) and the right to freedom of opinion and expression of another, the determinant criteria ought to be subordinated to the interests of each side – bearing in mind the “principle of proportionality” and the “specificity” of each case.
In this particular case, the “freedom of expression” of the defendant (Dr. Gonçalo Amaral – a criminologist) deserved greater protection than the “honour” of the plaintiffs. In other words, Dr. Amaral’s rights pre-excluded the unlawfulness of any potential injury to the honour of the McCanns’.
Furthermore, the counsellor judges decided that Dr. Gonçalo Amaral informed views were not necessarily abusive in the context of his constitutional freedoms. His views (based on the very findings of the police investigation which he coordinated) were perfectly acceptable in a modern European democracy (such as the one in vigor in Portugal).
More details at Gonçalo Amaral’s “Project Justice” blog.
Incidentally, one or two (“politically-incorrect”) comments elsewhere caught our attention, and we quote:
“And so, as it turned out, the Portuguese Constitution was not for sale! The Mammonites lost! Many, many of us who have been with you all the way would love to hug you now in celebration! At long last the nightmare is over – for you and your (often forgotten) family .
But in terms of “reputation management” is not over yet! Let us not forget British creativity. A Scotland Yard operation in the style of “Mincemeat” (1943) is still possible for we all know what can be done (and undone) with DNA samples. Ask FSS (Birmingham) but I digress! O povo unido jamais será vencido!“
” The McCanns with all their money, friends in high places, government support, expensive “top-dog” lawyers, and reputation management experts – such as Clarence Mitchell, Burson-Marsteller and Lift Consulting – were unable to send the Portuguese Constitution to the recycle bin. Well done Portugal!” (quote).
ADDENDA: 21 March 2017
Joana Morais “On the McCanns’ request for annulment of the Portuguese Supreme Court´s ruling” (transcript)
“In a concise manner, the grounds invoked by the Appellants come down to a technicality.
The Appellants argue the Public Prosecutor’s Archiving Dispatch filed the criminal investigation under the Code of Criminal Procedure (CPP) article 277.º, no.1, and that the Supreme Court’s ruling states they were not exonerated within the no.2 of that same article.
In other words, they allege the Public Ministry prosecutor José de Magalhães e Menezes, and the joint prosecutor João Melchior Gomes archived the process because they were not suspects of any crimes and that, on the other hand, the Supreme Court’s judgement was wrong to state that the Archiving Dispatch established that there was not enough evidence gathered to bring charges.
We will go into the legal explanations in the second section of this article, but we would like to stress that the appellants and their lawyer fully dismiss the integrant reasoning and legal groundings of the archiving dispatch, holding on exclusively to this particular article.
This is invoked by the Appellants within the framework of the presumption of innocence, despite the fact that this particular point was never in question. The Supreme Court of Justice went to great lengths to explain this point, concluding: “It should be noted that in the present process, the matter of their penal responsibility is not in dispute, that is, their innocence or culpability, concerning the facts that lead to their daughter’s disappearance, so it does not have to be appreciated here. What is under discussion is, and only that, the civil responsibilities of the defendants, due to the fact that they expressed and divulged the thesis/opinion previously mentioned with respect to that disappearance. So much so that the outcome of this process is not susceptible of calling into question the extra processual dimension of the presumption of innocence. That is, even if the action (lawsuit) is rejected, that will not imply, even in the general public eye, any consideration regarding the responsibilities of the Appellants, since such an outcome can never be equated to an assertion of guilt.”
We will just stress again that the presumption of innocence assists any defendant of a penal case, i.e. of a criminal process. It must not be confused with being exonerated nor cleared.
In simpler terms, the archival of the criminal investigation does not exonerate the Appellants but these will always benefit from the presumption of innocence should criminal proceedings eventually be brought against the Appellants. Even though we believe this will never take place for lack of will and true commitment by the authorities in both countries.
Finally, the Appellants seem to have opened an unexpected Pandora’s box, their actions may now force a written correction of the article that should have been used in the Archiving Dispatch .
Legal explanations with the valuable insight of a Portuguese jurist
The judgement of the Supreme Court of Justice (STJ) shows that their arguments are based on two points: firstly, that Gonçalo Amaral’s thesis goes against the right to the presumption of innocence that they enjoy; secondly, that there is a collision of rights between their honour and their good name and the right to freedom of expression of Gonçalo Amaral and, in this case, the later must cede the right to freedom of expression.
As it is known, the Supreme Court of Justice ruled that there was no depreciation of the right to presumption of innocence, even because that issue was not in question. And, they are correct in judgement. The right to presumption of innocence is extended to all criminal proceedings, but here we are not in the context of a criminal process, but rather an action seeking to assess Gonçalo Amaral’s civil liability for the violation of the McCanns’ rights. Therefore, there is no connection between what Gonçalo Amaral has said and the principle of presumption of innocence in this case, since the presumption of innocence is only related to the criminal process and here we are in the context of civil proceedings. The only issue to assess is which of the fundamental rights in conflict should prevail, and from then a conclusion can be drawn as to whether or not Gonçalo Amaral has violated the McCanns’ fundamental rights and therefore has to compensate them.
It should be noted this issue was started with the decision of the first instance court which one could argue had an erroneous assessment of the situation of conflict of rights – it was the first instance that messed up by accepting the argument that the principle of the presumption of innocence was in question at a civil case. Concerning this matter, see pages 68 and following of the Supreme Court´s ruling.
Then, the other question is, according to the Supreme Court’s ruling (page 70), the conclusion of the Public Ministry in the Archiving Dispatch is wrong. To clarify: the Archiving Dispatch has a reasoning. Throughout that reasoning, the prosecutor goes on to say how the facts were ascertained, how blood was found in the car rented by the McCanns, that there were traces of blood in the apartment, how the most likely thesis is that of homicide, but also that it was necessary to admit the possibility of abduction. Then the prosecutor goes on to say that the canine markers were not confirmed, that no evidence of the homicide was collected, but that Madeleine could have been killed in the apartment, even though it was not possible to conclude by whom; that the abduction is a possibility to be taken into account due to the witnesses, etc. That is, the reasoning of the Public Ministry suggests that the filing is due to lack of sufficient evidence that the McCanns have committed the crime. However, upon finishing the dispatch, the prosecutor affirms that the archival is done under art. 277/1 of the CPP, which states that the archival is determined when it is concluded that the defendants did not commit the crimes.
In short: the reasoning of the Archiving Dispatch goes in the sense of art. 277/2 of the CPP, but in the last paragraph the prosecutor states the archiving is done under the terms of art. 277/1, that is to say, the reasoning goes towards supporting that “there was not enough evidence collected to prove that it was the McCanns” but the last sentence goes in the sense of “it’s archived because it was concluded that it was not the McCanns who committed the crime”.
Obviously, there is a contradiction in the Archiving Dispatch. And what matters is the reasoning. And the reasoning goes in the sense that it did not collect sufficient evidence that it was the McCanns who committed the crime. This is what both the Lisbon Court of Appeals and the Supreme Court of Justice state in their judgements.
Now, it can only be concluded that it was not the arguido who committed the crime in two situations: when it is concluded that there is no crime or when it is concluded that the crime was not practised by the arguido, but by another person.
However, what the Public Ministry prosecutors conclude is that there was a crime (if not of homicide, at least of abduction). In this scenario, only if it was known who the real author was, that is, only if the evidence was conclusive in respect to another person could the prosecutor state “it was not the McCanns”. In fact, what the Public Ministry concluded was: (1) there was a crime; (2) there is no conclusive evidence that it was the McCanns. This is the result of the reasoning of the Archiving Dispatch. Therefore, the filing was made under art. 277/2 and not of art. 277/1, as, certainly by mistake, the prosecutor affirms.
It turns out that the McCanns cling, with tooth and nail, to the last paragraph of the Archiving Dispatch and to the mention of art. 277/1 to claim that the Public Ministry states that they were not the ones who committed the crime, and that, thus the Archival Dispatch innocents them. And therefore, any claim, whatever the source, that they are guilty or have something to do with their daughter’s disappearance is false and therefore offensive to their honour. This is how crafty the McCann’s thesis is.
The problem with their thesis is that it expires if we take into account the reasoning of the Archiving Dispatch – that is, that there is insufficient evidence, so far, to prove that it was them. And that’s where it all goes: the McCanns are not right because the Archiving Dispatch did not exonerate them (nor it could, unless it was known that the author of the crime was someone else).
The Lisbon Court of Appeals explained that the McCanns were not right and why. The Supreme Court of Justice limited itself to corroborating the position of the Court of Appeals: “It doesn’t therefore seem acceptable to consider the referred dispatch, which is based on the insufficiency of evidence, to be equated to proof of innocence.”
Now, let us look at what their reasoning for the annulment of the judgement is.
The McCanns allege the Supreme Court has given as proven fact that the Archiving Dispatch, where the aforementioned last paragraph referring article 277/1 of the CPP is included, was due to the fact that it was concluded that they had not committed a crime.
Then, they argue: if the Supreme Court gave that as proven fact, it cannot then decide that the archiving was done under the article 277/2, nor it can, therefore conclude that they were not exonerated by the Public Ministry. And also, the Supreme Court cannot therefore state that their right to honour has not been violated because, if there was a declaration of innocence, any statement to the contrary violates the good name and reputation of the McCanns.
Therefore, they say, there is a contradiction between the proven facts and the decision of the judgement, which renders it null, an annulment they now request.
It is our understanding that they are not correct because there is no contradiction. The Supreme Court says that the Archiving Dispatch is based on the insufficiency of evidence and, therefore, it is not a declaration of innocence and then decides in accordance with this understanding.
What the McCanns do is to read the judgement up to that fact given as proven and then read the decision, ignoring all of the Supreme Court’s arguments that will justify why the court understands that there is no declaration of innocence. They may ignore it, but it is there written, so, without the slightest doubt they will see the request for annulment rejected as manifestly inadmissible.
The Appellant’s request will not be upheld because the Supreme Court has already explained in the judgement why it reaches to the conclusions established in the ruling and, as explained, there is no contradiction between the Supreme Court’s reasoning and the decision, which is why the McCanns’ request will be rejected.
In other words, the McCanns’ request in which they seek the annulment of the Supreme Court’s ruling is admissible because it meets the eligibility requirements (it was done at the right time, at the right court, it invokes an alleged contradiction between the reasoning of the judgement and its decision, which is the basis for the annulment). But the request will not be upheld, that is to say, it will be rejected, because the McCanns’ argument cannot be accepted, since the alleged contradiction does not exist. This is to say that one thing is the admissibility of the request (which will occur, the request will be admitted) and another thing is the decision on the request (which will dismiss it as unfounded).
As to the hypothesis that more than a dilatory strategy, what that they want is to somehow have an argument to proceed with a complaint to the ECtHR. One could argue that there are always these tactics when we are talking about the McCanns. They are free of going to the ECtHR, of course. But if they go there, it will fall flat on its face. And for the very reasons previously invoked.
There is a “frivolity” in the annulment request that is a bit pushing what is acceptable, but still, it can be allowed in the scope of the broader freedom of expression that lawyers have when they are defending their clients.
One hopes the Supreme Court judges would state on the annulment’s decision something like: “the Appellants accuse this court of frivolously drawing conclusions, but those who frivolously ignore the reasoning of this court’s ruling are the Appellants”.
It should be noted that a request for the annulment of a Supreme Court of Justice ruling is exceptional, rare. And that this request has a suspensory effect. Being suspensive, means that all the consequences of the Supreme Court’s ruling are suspended, that is, there is no final and unappealable decision, and therefore, the decision is not definitive and can not be fulfilled, meaning, yes, that Gonçalo Amaral will have to wait for the decision of the Supreme Court on the request for annulment.
Gonçalo Amaral was notified of the request for the annulment of the Supreme Court´s ruling. As there is always the right to adversarial proceedings, Gonçalo Amaral can respond, saying that the ruling of the Supreme Court of Justice does not warrant any rectification or criticism. Then all parties have to await for the ruling of the Supreme Court’s conference.
The totality of the judges of the civil section is the conference, the request will be assessed by all judges of the civil section of the Supreme Court of Justice, including those who have deliberated on the judgement called into question. The mechanism should be similar to the distribution of the appeals to the Supreme Court of Justice.
As for the forecast date of the decision, in the Supreme Court of Justice the deadlines are extended. The judges will first submit the draft judgement, then the conference of judges will gather in order to assess the draft, then they will see if there are more votes in favour of or against, then it will be decided what the ruling is, after the judge rapporteur will write the final wording of the judgement according to what was decided by the conference, then the conference will reconvene for the final vote of the decision and for the presentation of the defeated votes, if there are any.
Sooner than we expected, and no doubt due to the weakness of the reasoning presented in the request for annulment of the Supreme Court´s ruling, the Supreme Court of Justice conference has now rejected the McCann’s request for annulment.” (quote/unquote).