a. In order to subsume the fact in the special unlawfulness forecast of article 484° of the CC, enough is the confirmed or spread fact being susceptible, given the circumstances of the case, to shake the prestige or the good reputation that a person enjoys in their social environment.
b. A book and other communicational substitutes that don't essentially report any fact, evidence or clue belonging to the criminal investigation they allude to, since those were considered inexistent by the shelving report, are susceptible to shake the prestige that a person enjoys or the good reputation of this person in the social environment.
c. It shakes also the honour, the good name and the image of any innocent person, and already cleared before through the filing dispatch of a criminal investigation (the conclusion of which is that no element of proof nor evidence exists that the person committed any crime), a book, a documentary and an interview, extravagant in relation to the criminal investigation, and not even being part of those communicational supports the mention of that filing dispatch, but instead exactly the contrary of what this dispatch is postulating.
d. And the honour, the good name and the image of any innocent and cleared citizen are even more shaken by communication media that intend and are able to disrespect and weaken the judgement reached by State magistrates, the sole holders of the penal action, (the media) representing the target citizen, in the eyes of the remaining citizens, as suspect of the practice of crime, through the use of concrete circumstances advertisers that proclaim the "truth of the lie", "unique revelations" and "confidences", and that will prove the crimes that target the innocent citizen, all that with the confessed intention to inculcate third parties with the conviction that a child died and that her parents are involved in the occultation of her cadaver, simulating abduction and cheating the justice and the common citizen.
e. The right of free expression isn't absolute and must respect the right to honour and good name. When that expression, even of a true fact, is abusive and therefore unlawful, it can be subject to legal sanction.
f. The right-duty to express one's thought must be exercised with a clear civic criterion, of respect for man by man, and the information must be guided by rigorous ethical and moral rules, appropriated to a natural civic coexistence.
g. The abusive and harmful acts of arguable expression of a retired public agent do not fit in the constitutional or conventional concept of freedom of expression, in force in any democratic country in the world. They challenge without logical, honest and valid support, a judicial decision, untouched and uttered in a process that this same agent investigated, through a comportment contrary to his own professional statute, to the social peace and to third-party personality rights, acts those exclusively for financial and social gain and to create a popular phenomenon, the repercussion of which benefits the offending parties and entails substantial and indelible damage to the offended ones, even because such conduct is prohibited not only in relation to the absolute rights of the concerned ones, but also in view of the duties to which a retired public agent remains bound.
... and because it con-substantiates an unconstitutional conduct, violating international treaties on humanitarian, immoral and unethical law.
i. The rights relied on by the applicants and already acknowledged by three of the judgements uttered before in first instance, fit in and are justified by the fundamental principle of human dignity, until now characterising the politico-sociological profile of the Portuguese State, with expression in the regulation guidance of the right to good name and reputation, in the guidance of the protection of one's innocence, in effective judicial protection and in the guidance of the right to personal life and integrity.
j. Freedom of expression, freedom of the press and social communication, in a society of the rule of law like the Portuguese one, doesn't contain in itself an especially powerful and incompressible guarantee and its regime does not overlap with the personality rights called in the minutes by the applicants. They must therefore yield to them in order to insure greater constitutional objectives.
k. Freedom of expression and social communication, representing a de facto power, forces the State, in these circumstances, to secure, namely through its courts of law, a system of effective guarantees of the fundamental rights of the citizen, in front of such a power, in compliance with the fundamental principle of the democratic State of Law, which is to respect and ensure the effective implementation of the fundamental rights and liberties of the citizens.
l. In Portugal, regarding the CRP, the UDHR, the European Convention on 1 Human Rights and the Convention on 1 the Rights of the Child, it is not allowed to write, to spread by all means and to comment with every possible nuance, a thesis that criminally charges innocent citizens and never even judicially accused of the crimes that it contains. It is not up to the State and the Courts of Law to protect whoever behaves this way, but, yes, to protect the citizens of such aggressions.
… but like an activity protected by national and international rights, the assertion and diffusion of the thesis proclaimed urbi et orbi 1 by the respondents not even fitting in the scope of possible criticism of this conduct.
On one hand, struck by a vice of erroneous interpretation and application to the case at stake of the provisions of articles 12° of the UDHR, 6°, 8° and 10° of the European Convention on Human Rights, 5°, 6°, 9°, 11°, 13°, 14°, 16°, 17° and 34° to 37° of the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations in November 20 1989, ratified by Portugal in September 21 1990, of the articles 1°, 2°, 8°, 20°, 26°, 32°, 37°, 38° and 272° of the CRP, 70°, 80°, 81°, 335°, 2°, 483° and 484° of the CC, 371° of the CPP, 74° of the D.L (law decree) 498/72 of December 9, and the 3° of EDTEFP (Disciplinary Statute of Civil Servants), dedicated by D.L. 234/84 of January 16 and, in the subsequent version still applicable to the minutes, in law 58/2008 of September 9.
A) when interpreted and applied to the present case, in the sense of allowing the publication of the book or the film, and the acquittal of the respondents to pay appropriately and proportionately the indelible damages that they caused to the appellants by virtue of their action, and abusive and illicit communication media.
B) when it is more certain that this interpretation and application of said constitutional precepts, is shown incompatible with the inalienable principles of the dignity of the human person, of the general protection of personality and of the right to good name and reputation, and also under the supervision of effective jurisdiction and of the innocence presumption.
1 "Orbe" in the original, but this is a dative case : urbi (to the city) and orbi (to the world).
6) Compensates for the proven damage that have been verified in the legal spheres of the appellants and that are the direct and necessary cause of the unlawful, guilty and abusive conduct of the respondent Gonçalo Amaral, damage which, once balanced the degree of guilt of the party at fault, the seriousness of the offence, the temporary and social circumstances in which the facts were committed, and, since it is particularly relevant in this specific case, the value of the benefits accrued by the party with the unlawful act, shall not be compensated with a lower amount of compensation filed in the proceedings by each of the appellants and previously stipulated for them, in that exact measure, by the judgment now revoked by the TRL.
A. At stake in the present autos is the book Maddie, the Truth of the Lie written by the respondent GA and published by the respondent G&P. The publishing contract was celebrated with the appellant GA on 10/3/2008, the book being published on the 24/7 of the same year.
B. Circulate on the Internet, without the authorization of the respondent, an English version and a Portuguese version of the book at issue in the present case, and a version of the documentary, with English subtitles. As well as a full copy of the criminal process.
C. The action that originated these proceedings and of which the respondent is a party was also brought against TVI, which was acquitted by the first instance judgment, that has already become res judicata (final judgement) on this point.
D. In other words, the appellants accepted the acquittal in the first instance of the defendant TVI which had broadcast twice a documentary based on the book written by the respondent Gonçalo Amaral and published by the now respondent G&P and, consequently, they accepted that such defendant could broadcast the documentary and divulge in some way the thesis of the book.
E. With the exception of paragraph a) of the request formulated in the action, all other paragraphs are addressed to all defendants of the action, TVI including, therefore the appellants do not care if the defendant TVI practices the facts that they intended to prevent with the present action, but concerning the respondent and others they do.
F. With the acceptance of the acquittal of the defendant TVI, the present appeal that seeks to sue the respondents Gonçalo Amaral, G&P and VCFA, con-substantiates the abuse of rights foreseen in article 334° of the CC and implies the groundlessness of the present appeal.
G. We live in a democratic State of Law, based on pluralism of expression, which guarantees freedom of thought and free disclosure, besides the fact that we must all contribute to the enrichment of culture through the publication of books and documentaries.
Page 46 … or comments, even on publicly known facts, when they feel those might be unfavourable.
I. Thus the sphere of private life of the claimants, as much through their notoriety as through their option, can only be considered reduced, especially according to the terms and effects of the contents of Article 80°-2 of the CC.
J. The appellants maintain to the same extent the dignity of the human person, the good name and reputation and the presumption of innocence which they had before and after the publication of the book in question.
K. There is a chronology and succession of public and notorious facts that cannot be omitted, that are reflected in the factuality given as proven in the enumeration of the appealed judgement and also in the filing dispatch included therein.
L. Since the disappearance of the child, up to this date, the appellants have publicised their opinion on the facts, though these are still unknown today.
M. As well as the appellants, every citizen has the right to have an opinion on the facts and to publicize it.
N. The rights to freedom of expression and information and the right to freedom of the press and social communication media are enshrined in articles 37° and 38° of CRP.
O. And further, the right to freedom of expression is enshrined in Articles 19° of the UDHR and 10° of the European Convention on Human Rights.
P. Contrary to the claim of the appellants, various decisions of the ECHR, that can be consulted, have come to condemn the Portuguese Courts of Law for violating the right to freedom of expression and freedom of the press by condemning journalists and other citizens for defamation.
Q. The ECHR considers that the right to freedom of expression is one of the essential foundations of a democratic society.
R. The STJ in Portugal has also delivered judgments that value the right to freedom of expression, to the detriment of other rights.
S. In view of the exposed elements, there can be no doubt that the right to freedom of expression and the right to freedom of the press are fundamental in a democratic State of Law.
T. As stated, it was the appellants themselves who freely and conscientiously chose to make public facts that besides cannot be considered from private and family life.
U. The request for protective injunctions of the appellants' personality rights petitioned are not suitable for the purpose at stake, besides of being illegal.
V. And could only be applied after detailed analysis to verify, case by case, if they are legal, appropriate and proportionate to the specific case and who are the recipients thereof, which is forbidden to that Court.
W- The present minutes are composed of two different actions with different values. The respondent G&P is part of an action with a value of € 30,000,01, whereby this is the value of the costs paid by the party whose claim is rejected.
Article 10° of the European Convention on Human Rights.
- the first instance found that the defendant Gonçalo Amaral, because he been responsible for the criminal investigation as a member of the PJ, although, meanwhile, he retired, couldn't enjoy full and complete freedom of expression, since the functions he was in charge of imposed on him, in particular, the reserve duty, wherefore that freedom having to yield to this duty, his conduct was unlawful in virtue of the art. 484°of the CC.
... the publication of the book in question as revealing the legitimate exercise of right to opinion.
The appelants, in the conclusion of their claim for review, despite alluding to their claim to have the sentence of the first instance reinstated, did not make any express reference to the question of the alleged reserve duty of the defendant Gonçalo Amaral, to which, according the same judgement, freedom of speech should give in, which constitutes the cornerstone of the entire construction leading to the conclusion that the conduct of that defendant was illicit, by virtue of art. 44° of the CC.
That thesis, as we have already seen, was not welcomed by the Tribunal da Relação (Appeal Court). So, what the appelants claim is that, in order to subsume the fact to the special provision of illegality of the aforementioned art. 484°, enough is the affirmed or disclosed fact to be capable, taking into account the circumstances of the case, of undermining the prestige of someone or the good reputation enjoyed by someone in the social environment.
So much more, they add, when innocent and cleared citizens are concerned (via the filing dispatch of the criminal proceedings), who are anyhow entitled to benefit of the principle of innocence presumption.
Furthermore, they claim that free speech, in a society of primacy of law, such as the Portuguese one, does not contain in itself any guarantee particularly powerful and incompressible, its regime not overlapping with the personality rights called by the appellants in the minutes. It should therefore yield to them, with a view to ensuring greater constitutional objectives.
The central question that must be considered in this present appeal is how to resolve the conflict between the rights of claimants Kate and Gerald McCann, now appellants, to good name and reputation, and the rights of the defendants Gonçalo Amaral, G&P and VCFA, now respondents, to freedom of expression and information, and to freedom of the press and media.
That question implies the formulation of the following question: must the conduct of the respondents be regarded as unlawful, for besmirching the honour of the appellants ?
As the outcome of what has been exposed above, freedom of expression and honour constitute two fundamental rights that, given its relevance, deserved a constitutional consecration.
A broad conception of honour is approved, encompassing the various meanings which are legally recognized to this concept : the Constitution safeguards the "good name and reputation" (art. 26-1), the CC welcomes the "moral personality" (art. 70°-1), "honour or reputation or simple decorum" (art. 79°-3) and the "credit or good name" (art. 484°) ; the CPP protects "honour or consideration" (art. 180° sq).
Thereby, the art. 26°-1 of the CRP welcomes the right to good name and reputation, which, according to Gomes Canotilho and Vital Moreira, in the CRP annotated , Vol. 1, 4th ed., p. 466, consists essentially in the right not to be offended or harmed in one's honour, dignity or social consideration by imputation made by others, as well as the right to defend oneself of this offense and to obtain a relevant reparation.
For its part, the article 37° of the CRP recognizes two sets of rights - the right to expression of thought and the right to information. The right to expression is, straight away, freedom of expression, that is to say the right not to be prevented from expressing oneself and to spread ideas and opinions.
According to those distinguished constitutionalists, op.cit. p. 572, the regime of the right to expression of thought and the right to information is, in the juridical-constitutional perspective, essentially identical. The normative scope of freedom of expression should be as broad as possible to include opinions, ideas, points of view, convictions, criticism, stances, value judgements on any matter or issue (political, economic, gastronomic, astrological questions), and whatever are the purposes (influence of public opinion, commercial objectives) and the criteria of appraisal (truth, justice, beauty, rational, emotional, cognitive, etc.).
the press and other mass media.
In this way, freedom of the press is only a qualification of freedom of expression and information intended for the public.
That is why the first shares the entire constitutional regime of the latter.
... harmonization of the various rights) and in the European Convention on Human Rights (art.8° and 10°).
Although the STJ has already understood, in particular in the judgements of 30/06/11 and of 1914/16 (in www.dgsi.pt), that the ECHR does not protect, in general, the right to honor, referring it only as possible integral part of the restrictions to freedom of expression mentioned in the quoted art. 10°-2, the jurisprudence of the ECHR considers that from respect for privacy enshrined in article 8° of the ECHR emerges a right to protection of reputation (cf. the following cases : Petrina vs Romania (78060/01), Abeberry vs France (58729/00) and Leempoel SA. ED Cine Revuc vs Belgium (64722/01), cited in the above mentioned Judgement of the Lisbon Appeal Court of 14/02/12, and, more recently, the cases Medipress-Sociedade Jornalística,Ldt. Vs Portugal (55442/12) and Tavares de Almeida Fernandes e Almeida Fernandes vs Portugal (31566/13).
In these last two cases, the decisions of which date, respectively of 30/08/16 and 17/01/17, it was considered that whenever the Court has to rule on a conflict between the two mentioned rights, which are also protected by the Convention, it must take stock of the interests at stake, from the point of view of art. 8° as well as from the point of view of art. 10°, since those two rights deserve, a priori, an equal respect.
It should be noted that, in the civil and legal sphere, the art. 335° of the CC states that the concrete resolution of a conflict of rights with identical value requires its harmonization, seeking to optimize them so that each one can produce its best effects.
However, since there is a collision of fundamental rights, the conflict can not be solved by the principle of equal treatment. It is necessary to weigh the interests concerned in order to determine which needs more protection in the case at stake.
The law may only restrict rights, freedoms and guarantees in cases expressly provided for in the Constitution. The restrictions being limited to what is necessary to safeguard other constitutionally protected rights or interests.
The mentioned 2nd paragraph thus gave clear constitutional haven to the principle of proportionality, also called principle of prohibition of excess, which, according to Gomes Canotilho and Vital Moreira. op. cit. p. 392-3, is divided into three sub-principles: the principle of adequacy (the restrictive measures of rights, freedoms and guarantees should prove to be an appropriate means for the pursuit of the contemplated purposes, safeguarding other constitutionally protected rights or assets), the principle of liability (such restrictive measures must be required in order to achieve the objectives in view of the fact that the legislator does not have other less restrictive means to achieve the same objective), the principle of fairness or proportionality in the strict sense (disproportionate, excessive measures will not be adopted to achieve the intended objectives).
Likewise one can see the Ruling n° 634/93 of the Constitutional Court of 4/11/93. In the light of the Constitution, freedom of expression and honour have the same legal value, turning impossible any principle of abstract hierarchy among them (Gomes Canotilho, Constitutional Law and Constitutional Theory, Coimbra, 2003, pp. 1225 and 1237).
It is therefore appropriate to use the principle of practical concordance or harmonization that obstructs a solution sacrificing a right in relation to the other and forces to the existence of constraints and mutual conditioning, with the aim of reaching a solution of harmony or practical agreement between both (see article 18°-2,3).
However, as it is impossible to reach a solution of harmonization in order to obtain a fair solution to the collision of rights, positive aspects will have to be counterbalanced, followed by a balancing methodology adapted to the specificity of the case (norm of decision in situation, in the words of Gomes Canotilho, op. cit. p. 1237).
This is why the conflict resolution cannot fail to take on a concrete nature, exhausting itself in each case it resolves.
In fact, settling the conflict in the abstract would imply a prioritized hierarchy of rights constitutionally inadmissible.
As it is known in modern democratic States of Law, like Portugal, the conflict between freedom of expression and honour is a classic issue.
Particularly when those involved are public figures and a matter of public interest is involved.
The concrete resolution of the conflict between freedom of expression and honour of public figures, in the European legal context, where we are inserted, takes place under the influence of the European jurisprudential paradigm of human rights.
In this way, the ECHR interpreting and applying the European Convention on Human Rights has defended and developed a doctrine of enhanced protection of freedom of expression, in particular when the person targeted by imputation of facts and formulation of dishonourable value judgments is a public figure, the issue being a question of political or public interest in general.
As Francisco Teixeira da Mota points out in "The European Court of Human Rights and Freedom of Expression - the Portuguese Cases", p. 89 : Though the European Convention on Human Rights doesn't add many rights to those already contained in our Portuguese Constitution, its ratification by Portugal is a significant milestone for a number of reasons, among which stands out the fact that Portugal joined a juridico-cultural community which values and upholds human rights and the fact that its citizens have now direct access to international (European) mechanisms of protection of those rights.
It has been understood, between us, both at the doctrinal and jurisprudential level, that the ECHR occupies an infra-constitutional position, its application in internal order being therefore dependent on conformity to the precepts of our fundamental law and that it has a supra-legal value, so that the internal laws, posterior to a internally received treaty, that contravene the provisions of its commands will not, to that extent, be able to be applied by the courts (Rui Moura Ramos, "The European Convention on Human Rights - Its Position on the Portuguese Legal System" and "Implementation of the European Convention on Human Rights - Some Problems", in Documentation and Comparative Law – BMJ, 1980 and 1983 respectively).
The national judges are, in this way, linked to the European Convention on Human Rights, since, having been ratified and published, it constitutes a national law which as such must be interpreted and applied, in constitutional terms, over domestic law (art. 8° of the CRP).
Moreover, under article 16°-2 of the CRP, the constitutional and legal precepts related to the fundamental rights must be interpreted and integrated in accordance with the UDHR.
As António Henriques Gaspar, current Judge-Counselor President of the STJ refers in The Influence of the European Convention of Human Rights in the Interjurisdictional Dialogue, the National Perspective or the Other Side of the Mirror, intervention in the Colloquium on the occasion of the Commemoration of the 300th anniversary of the validity of the Convention in Portugal - STJ, 10/11/08, published in Revista Julgar, n° 07, p. 39, In spite of the limited terms of direct linking, the decisions of the ECHR, when interpreting the provisions of the Convention, must have a 'specific authority' which is imposed on all States by the so-called "autorité de la chose interprétée" (res interpretata authority) : the ECHR's function is "to clarify, safeguard and develop" the Convention's norms, helping to ensure that States respect the commitments assumed under the Convention entailment.
In such a way that the interpretation by the ECHR of conventional norms must be considered as integrating the Convention itself. The principle of entailment can be found in the wording of articles 1° and 19° which preside over the entire European Convention of Human Rights.
Thus, national judges, when interpreting and applying the Convention, as first-line conventional judges, must take into account the methodological references and interpretations and the jurisprudence of the ECHR as the proper instrument of conventional regulation.
It has to be reckoned that, according to the opinion of the national judges assembled for reflection and consultation (cf. Avis n°9, 2006, of the Conseil Consultatif des juges européens, on the function of national judges in the effective application of international and European law), the case-law of the ECHR must be for all judges a reference in the process of elaborating a body of European law.
On the other hand, on 28/1/03, the Parliamentary Assembly of the Council of Europe through the Recommendation 1589 (2003) reiterated to the Committee of Ministers, among other measures, the necessity to turn public the data related to the monitoring of the exercise of freedom of expression in member and candidate countries and the necessity for member states to incorporate the ECHR jurisprudence in the field of freedom of expression in their internal legislation and to ensure the appropriate training of the judges.
Nevertheless, as it is obvious, taking into consideration the case-law of the ECHR is not acceptance by imposition, but rather an intellectual imperative, that implies analysis and balancing, from which the outcome may be acceptance but also divergence.
In fact, the judges judge only according to the Constitution and the law, not having entailment of any kind, except the duty of compliance by lower courts of the decisions proclaimed, on appeal, by higher courts.
Paraphrasing the current Judge Counsellor President of the STJ, op. cit. p.44, The dialogue and the interaction between the European instance and the national instances has to assume, on the part of those, a position of great openness and the assumption of a culture of judicial cosmopolitism.
Which, nevertheless, does not fail to alert to situations in which the national margin of discretion is completely removed by transforming in fact, the ECHR in a fourth instance, contrary to the conventional model of control (op. cit. p. 42).
However, as it is said here (op. cit. p. 50) the international bodies, for their part, must also bear in mind the warning of Judge Jackson of the Supreme Court : We are not final because we are infallible, but we are infallible only because we are final (Note : in English in the text).
Consequently, he concludes (op. cit. p. 50), the interjurisdictional dialogue must be undertaken by national judges with intellectual rigor, without the radicalisms proper to any methodological nationalism.
Anyhow, there are matters that are more permeable to jurisprudential reading of the ECHR, therefore, in these cases, it is more appropriate to take them as reference.
This is the case with the case-law on freedom of expression, built on the interpretation and application of the art. 10° of the European Convention of Human Rights, which offers a host of extremely useful criteria for the national courts, already integrating a European consensus, so that internal decisions can not fail to take this case-law into account.
Such a consensus reveals a doctrine of enhanced protection of freedom of expression, in the terms referred to above, which is considered as super freedom and as one of the most precious rights of man.
However our case law on freedom of expression, in its confrontation with the right to honour, tends in general to uphold the primacy of the latter over the first (cf. inter alia, the judgements of the STJ of 26/4/94, 14/2/02, 7/3/02 and 8/3/07 in www.dgsi.pt).
… On the national instances' side there is a clear tendency to secondarily favour freedom of expression and to overestimate the right to honour.
This has caused Portugal to be condemned by the ECHR for violation of art. 10° of the European Convention of Human Rights (cf. the cases Lopes Gomes da Silva vs Portugal (2000), Urbino Rodrigues vs Portugal (2005), Roseiro Bento vs Portugal (2005). Almeida Azevedo vs Portugal (2007), Colaço Mestre vs Portugal (2007), Leonel Azevedo vs Portugal (2008), Medipress Sociedade Jornalistica. Lda. Vs Portugal (2016) and Tavares de Almeida Fernandes and Almeida Fernandes vs Portugal (2017)).
Thereby followed the injunctions of the Recommendation R (2000) of January 19 2000 from the Committee of Ministers of the Council of Europe, which constitutes a soft law instrument that called on States to provide for the possibility of reopening internal proceedings when the re-examination is the necessary means to repair the entitlement affected in the cases where violation is stated by the ECHR.
This reflects the growing importance of the case-law of that Court. However, it is clear that national case-law has been operating at a turning point, having for basis and groundwork the pertinence, the dignity and the dimension of freedom of expression, as stated in the STJ's judgement of 7/3/01 (cf. also the STJ's judgments of 7/2/08, 10/7/08, 30/6/11, 28 /6/12, 8/5/13, 21/10/14 and 19/4/16, where the influence of the jurisprudential paradigm of the ECHR is evident).
The first instance judgement accounts for all this. This is why it was reproduced in part in this judgement (cf. the first 39 pages). We assume that there was a correct invocation of the legislation and of the case-law relevant for the purposes of deciding on the central question referred to above and still for reasons of procedural economy, so as not to repeat legal and jurisprudential citations, which, in this way, we consider here as reproduced.
... and we disagree with the decision so decided on the basis of the arguments which we shall adduce next.
6. The dogs of the British police 'Eddie and Keela' have detected human blood and body odours in the Ocean Club, apartment 5-A.
7. The dogs Eddie and Keela, from the British police, have detected human blood and cadaver scent in the vehicle rented by the Kate McCann and Gerald McCann applicants after Madeleine's disappearance.
8. The claimants Kate McCann and Gerald McCann were constituted arguidos (formal suspects) in the criminal investigation.
... that the same was removed from the place where it was originally disposed of. This situation is likely to raise questions about the circumstances in which occurred the death of the minor.
H) Evaluate the adequate measure of constraint to be applied in the case (page 2601).
During the investigation which goes on regarding the disappearance of Madeleine McCann, the proceedings being therefore open either to confirm or to deny that the occurrence of the disappearance is related to the crimes of kidnapping, homicide, exposure or abandonment and concealment of corpse, and in accordance with the established plan, the need was felt to gather information on the actual time of the disappearance, verify the location of each stakeholder – from the McCann couple to the group of friends with whom they were on holiday in tourist apartments in the Praia da Luz Ocean Club, i.e Michelle Jane Tanner, Russell James O'Brien, David Matthew Oldfield, Rachael Jean Mampilly David Anthony Payne, Fiona Elaine Payne and Diana Webster – when the events occurred and in the moments that followed, and determine the movements of the assisted witnesses, Gerald McCann and Kate Healy, during their stay in Portugal, while also establishing connections between all stakeholders and third parties.
In this sense, and because the following investigation needed is essential for the discovery of truth , especially the analysis of information on telephone exchanges between the McCann couple and their friends, and other phone numbers, which have shown to be related to events of May 3rd 2007 evening, the minutes are delivered to the Judge of Criminal Instruction (JCI).
12. The defendant Gonçalo Amaral was, until 2/10/2007, the PJ inspector in charge of coordinating the investigation into the disappearance of the applicant Madeleine MC .
13. The defendant GA is retired from the PJ since 1/7/2008 (n° 19).
14. On 21/7/2008, the Republic General office Prosecution informed through a "note for social communication" that the investigation mentioned in 5. would be shelved and could be reopened at the instigation of the Public prosecutor or at the request of any interested party, if new evidence arose, raising serious, relevant and consistent investigation (an° 20).
"Taking into account that certain points in the formal suspects' ('arguidos') and witnesses' statements revealed contradiction, at least apparently, or lacked physical confirmation, it was decided to carry out the "reconstitution of the fact", an operation that is consecrated in article 150° of the Penal Process Code (CPP) in the sense of duly clarifying, on the very location of the facts, the very important following details, among others : etc. etc.
20. The (then) defendant Gonçalo Amaral is the author of the book Maddie - A Verdade da Mentira, published by the (then) defendant G&P.
4) Death could have occurred as a result of a tragic accident.
5) There are clues of neglect in the protection and safety of children ( pp.220-221 ).
25. The book Maddie - A Verdade da Mentira was launched on 24/07/2008 in El Corte Inglês Shopping Centre in Lisbon.
40. The (then) defendant VCFA produced the documentary Maddie, The Truth of the Lie, directed by Carlos Coelho da Silva, which is an adaptation of the book written by the (then) defendant Gonçalo Amaral. This documentary, in DVD format, is appended to the files.
My name is Gonçalo Amaral and I have been an inspector for the Judiciary Police for 27 years. I co-ordinated the investigation into the disappearance of Madeleine McCann on the 3rd of May 2007. During the next 50 minutes I will prove that the child was not abducted and that she died in the holiday apartment in Praia da Luz. Discover all the truth about what happened that day. A death that many want to cover up.
What I know tells me that Madeleine McCann died in apartment 5A on the 3rd of May 2007. I am certain that this truth one day will be ascertained. The investigation was brutally interrupted and there was a hasty political archival. Some are hiding the truth but, sooner or later, the varnish will crack and revelations will surface. Only then will there be justice for Madeleine McCann.
The mystery remains, the former inspector believes that one day the truth will be known. For now, we are aware only that on the 3rd May of 2007, Madeleine McCann disappeared in Praia da Luz. She was 3 years old and she was a happy child.
65. The Prosecutor Office in Portimão determined the creation of a digital copy of the investigation process, with the exception of parts subject to absolute secrecy, and its delivery, upon request, to several people, including journalists, which occurred.
66. The content of such a digital copy was made public, including through the Web, having been publicly and universally read, commented and discussed.
67. The (then) claimants Kate and Gerald McCann have alerted the press about the disappearance of their daughter.
68. The claimants Kate and Gerald McCann gave an interview to the North-American TV program Oprah hosted by Oprah Winfrey, revealing the existence of new witnesses, reconstructions and e-fits.
69. The Oprah interview was worldly broadcast by signals available through satellite and cable networks.
70. This interview for the Oprah program was broadcast in Portugal by (the TV Channel) SIC, on the 9.05 and 12.05.2009.
71. The claimants Kate and Gerald McCann, in collaboration with the British television station Channel 4, made  a documentary about the disappearance of their daughter, entitled Still missing Madeleine, lasting 60'.
74. The documentary SMM, translated Maddie, Two Years of Anguish, was broadcast by SIC on 12.05.2009.
75. On 17.10.2007, Clarence Mitchell, spokesman for Kate and Gerald McCann said they were realistic enough to admit that their daughter would probably be dead.
76. There was a huge public interest in Portugal and throughout the world, about the events surrounding the disappearance of Madeleine McCann, the investigations carried out to find her and to determine what in fact happened, their evolution and vicissitudes, among which the constitution of the claimants Kate and Gerald McCann as suspects in the investigation process and the removal of the defendant Gonçalo Amaral from investigations that were developed under his coordination.
77. The claimants Kate and Gerald McCann hired, through Madeleine's Fund, PR firms and spokesmen.
78. The so-called Maddie case has been deeply treated in the Portuguese society and in foreign countries, either by media organs or in books, like the works of Paulo Pereira Cristovão, Manuel Catarino and Hernani Carvalho.
79. The so-called Maddie case was commented by Dr. Francisco Moita Flores, former Inspector, writer, and criminologist, as a columnist in various media.
80. The facts related to the criminal investigation of Madeleine McCann's disappearance that the defendant Gonçalo Amaral refers to in the book, in an interview with the newspaper Correio da Manhã and in the documentary are mostly facts that occurred and are documented in this investigation.
(IV) the politicians, the public figures and senior officials of public administration, when in the exercise of their charge are subject to limits of criticism wider than private persons.
… As for point (VI), Renaud c. France (13290/07) and UJ vs Hungary (23954/10)).
In view of the above legal and case law framework, it is necessary to examine the specific situation set out in the minutes of this case, taking into account the facts (materia de facto) given as proven, already reproduced.
What results from this, as well referred in the sentence of the first instance, is that the book in question is the expression of an opinion, including the account of the conclusions that the author draws from the means of obtaining evidence produced in the investigation in order to formulate a thesis, an hypothesis of verification of the facts.
It appears that both the interview as well as the documentary at stake are nothing more than ways of publicising the book and the thesis defended there, although the documentary develops it in a way, perhaps, more appealing.
That same thesis is synthetically, as well referred in the sentence of the first instance, that there was no kidnapping of the minor, contrary to the initial premise of the criminal investigation which is what the child's parents maintain up to now. What happened was the accidental death of the child in the flat of the tourist resort, then the cover up of this event through the concealment of her corpse and the simulation of the referred crime, carried out by the claimants Gerald and Kate McCann.
However, as stated by the justice instances, the put forward thesis is no novelty, since it is also contained in the report referred to in n° 9 of the proven facts, elaborated in the framework of the criminal investigation with the date of 10/9/07.
This was then a line of inquiry pursued in the investigation which, incidentally, established the constitution of the presently appellants as arguidos (formal suspects) (cf. n°s 10 and 11 of the proven facts).
In addition, since the office of the Portimão Public Prosecutor provided a copy of the aforementioned investigation, namely to journalists, its content was publicly and universally divulged and discussed (cf. n°s 65 and 66 of the proven facts).
Consequently, what is discussed in the present case is the exercise of the right to opinion of the respondent on matters of public interest concerning the appellants who, in this case, have to be considered public figures.
In fact, the 'public figure' concept arises in opposition to the 'private figure' one, being this one the anonymous citizens, living in the simpleness of their existence.
Concerning the minutes of this case, it can be said, taking into account the typology in which is analysed the concept of public figure referred to by Iolanda A.S. Rodrigues de Brito, in Freedom of Expression and Honour of Public Figures, pp. 46-7, that we are dealing with relative public figures, in so far as the appellants intervene publicly in order to influence a debate of public interest. This way, the perspective of their public life, connected with that debate, subjects them to a public interest for information, which guarantees them the possibility of accessing the social media.
And also, they are voluntary public figures, because they accepted to be thrown into the vulnerability of the public sphere, as a consequence of the role that they tried to assume in the public debate in which they decided to intervene.
Actually, as stated in the judgement under appeal and as it results from the proven facts, it was the appellants themselves who, by virtue of having easy access to the public debate, multiplied in interviews and interventions in the national and international media. Thus they opened the way for any person wishing equally to express an opinion on the case, contradicting their thesis.
Now, as Francisco Teixeira da Mota points out, op. cit. p. 21, The ECHR, in assessing the cases that are submitted to them, igrants the maximum degree of protection to the public debate and to freedom of expression, when public or political issues are at stake, including the public figures themselves and their actions.
This Court in fact considers that freedom of expression, as provided for in article 10°-1 of the European Convention of Human Rights, constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man.
As already mentioned, the ECHR has developed a doctrine of enhanced protection of the freedom of expression, when the person targeted by the imputations of facts and by the formulation of dishonourable value judgments is a public figure and when a matter of public interest is at stake.
Actually, being a public figure and not a mere private person, the targeted person is more exposed, unavoidably and consciously, to a tight control of their behaviour and opinions by journalists as well as by the general public. This is why the public figure should demonstrate a much greater tolerance in regard of such control.
And this is all the more so when it happens that the targeted persons themselves are the ones who utter public statements susceptible of criticism.
Of course the public figure is entitled to protection of his reputation, even outside the scope of their private life.
What is meant is that the imperatives of such protection must be weighed against the interests of free discussion of public issues.
This way, in the name of robust controversy, should not be protected unjustified personal attacks addressed to dignity, integrity and moral and professional probity, considered obviously unnecessary and disproportionate.
However, here too, the intense confrontation of ideas can easily lead to determined exaggerations, which must, to a reasonable extent, be protected, particularly in cases where it occurs in a public forum endowed with reasonable conditions of equality and reciprocity.
We observe, on the other side, that freedom of opinion, in the wording of the art. 10° of the European Convention on Human Rights, is the first of the constitutive elements of freedom of expression.
The distinction between facts and opinions is one of the aspects that the ECHR refers to as of particular importance.
Thus, while the existence of facts is possible to demonstrate, the truth of opinions is not susceptible of being proved. Requiring the proof of the truth of an opinion is impossible to fulfil and infringes the own freedom of expression, which is a fundamental part of the right guaranteed by the art. 10° of the "European Convention on Human Rights". However, even when an assertion corresponds to a value judgement, the proportionality of the interference may depend on the existence of a sufficient basis for the contested statement, since an opinion without factual basis to support it might be excessive (cf. Oberschlick vs Austria (1991)).
Freedom of opinion enjoys an almost complete protection in the sense that the possible restrictions allowed by article 10°-1 are inapplicable because they reveal an incompatibility with democratic society, such protection preventing the States from discriminating between citizens according to their opinions. Citizens indeed can not suffer negative consequences because of their opinions (cf. in this sense, Iolanda Brito, op. cit. p. 65).
According to Manuel da Costa Andrade, in "Freedom of the Press and Personal Inviolability", Coimbra, p. 274, the tolerance given to value judgement is ostensibly more generous than that granted to de facto imputations (...).
Who writes opinion is aware of the partiality of their positions, but simultaneously admits and wishes that these be shared and adopted by a large number of recipients of this opinion - that is the meaning of the argumentation : convert, convince, regiment (Cf. Also Jónatas Machado, "Freedom of Expression–Constitutional Dimensions of the Public Sphere in the Social System", BFDUC, Coimbra, pp.425-6 and 768).
The ECHR has stressed that issues of public interest should be debated and that opinions expressed on such issues, offensive to the honour of public figures, often arising encrusted in violent, hard and exaggerated language, should be protected by freedom of expression.
In the present case, what is verified is that the respondent conveyed his opinion, in the terms exposed above, taking into account, according to his understanding, the outcome of the elements of evidence and the clues gathered in the scope of the criminal investigation opened by the disappearance of Madeleine McCann on 3/5/07.
Thus, the enhancing judgement and the logical-deductive reasoning he develops throughout the book leads the reader to the conclusion that the child - whose custody and safety, along with that of her siblings Sean McCann and Amelie McCann, were neglected by her parents, here appellants, though neither reckless nor grossly, as it is said in the filing order issued by the prosecutor of the Republic on 21/7/08 - died accidentally inside the apartment where she was, after which occurred the simulation of her abduction and the concealment of her corpse.
While he's reasoning, the respondent questions the grounds or the foundations on which the allegation that Madeleine had been abducted could be sustained.
Those conclusions were subsequently reproduced by the respondent in the documentary and interview mentioned above, where he sought to discredit the affidavit of the appellant Kate McCann.
… the clues and means of proof hitherto collected in it, and the inquiries that had hitherto been carried out.
That is why it is not surprising that the facts related to that investigation that the respondent refers to in the book, in the interview and in the documentary, are mostly facts that occurred and were documented in this investigation (n° 80 of the proven facts).
It should be noted that the understanding defended by the respondent was, also, in almost coincident terms, shared by chief inspector Tavares de Almeida, who wrote the report addressed to the Public Ministry and dated 10/9/7 (n° 9 of the proven facts).
It has still to be reckoned that the Public Ministry by fomenting by the JIC the obtention of (telecommunications) traffic data., alluded to their necessity for the investigation of the crimes of kidnapping, homicide, exposure or abandonment and concealment of a corpse. The sought to be obtained data were furthermore connected to the appellants and included not only the date of the facts but also the period they were staying in Portugal (n°10 of the proven facts).
These data were collected by order of the JIC (n° 11 of the proven fact).
Which means that the thesis profiled by the respondent, at a certain time, deserved being welcomed by the entity constitutionally in charge of carrying out the penal action (n° 11 of the proven facts).
For that matter, the appellants were constituted "arguidos" in the criminal investigation (n° 8 of the proven facts).
This implies that emerged supported suspicion that they had committed crimes or crimes (cf. art. 58° and 59° of the CPP ).
It is true that the criminal investigation was eventually closed, in particular because none of the clues which led to the constitution of the appellants as arguidos was subsequently confirmed or consolidated (n°15 of the proven facts).
However, even in the filing dispatch serious reservations are raised as to the likelihood of the allegation that Madeleine had been abducted, in view of the doubts raised by the Jane Tanner/Kate McCann version.
The investigation intended to see clarified those doubts by the reconstitution of the events mentioned in the closing dispatch, an initiative however that was made unfeasible by the witnesses' failure to appear after being summoned to.
In the said order, it was concluded also that the appellants had neglected, although not recklessly or grossly, the duty of custody of their children, and still that, although it had not been possible to determine if the child was alive or not, it seemed more likely she was dead.
Actually a spokesman for the appellants said on 17/10/07 that they were realistic enough to admit that their daughter was probably dead (n° 75 of the proven facts).
It is clear, however, that the proven facts reveal that the respondent intended, on the one hand, to put in crisis the decision to remove him from the investigation, getting even to the point to suggest there had been a political management of the investigation and, on the other hand, to safeguard the rigour of the work of all the police professionals involved in the investigation until the moment he ceased to coordinate them.
Of all those circumstances does not result, in our view, that underlying the book, the documentary and the interview, exists an defamatory intention against the appellants, i.e an animus injuriandi, but rather an animus informandi and an animus defendendi 1.
The opinion expressed by the respondent is sufficiently detailed in an intelligible and logical assessment of the facts and elements of evidence gathered in the investigation. Therefore the existence of a mere attack ad hominem to the persons of the appellants is not to be prefigured.
In addition, the disappearance of Madeleine and the subsequent investigation have become subjects of general interest and discussion at national and even international level, which, incidentally, was afforded by the conduct of the appellants themselves (n°s 65 to 71 and 76 to 79 of the proven facts).
Thus, everything points to balancing the interests at stake and following a balancing methodology adapted to the specificity of the case, in the sense of freedom of expression, which in this case requires greater protection, taking into account, also, the European legal context where we are inserted and the influence of the European jurisprudential paradigm of human rights.
1 : Animus injuriandi (intention to offend) vs animus informandi (intention to inform) and animus defendendi (intention to defend).
But is, in this case, the protection of the appellants' rights to their good name and reputation closely related to the presumption of innocence, as said in the first instance's sentence?
And this because, as the appellants claim in the conclusions of their appeal allegations, beyond their being absolutely innocent and cleared by virtue of the filing order to close the proceedings, are they also entitled to benefit from the principle of presumption of innocence?
First of all it has to be said that the principle of the presumption of innocence (art. 32°-2 of the CRP, 11°-1 of the UDHR and 6°-2 of the European Convention on the Human Rights) is a rule of treatment to be given to the arguido (formal suspect) throughout the judicial criminal process.
Accordingly, this principle can not be construed as a restriction on public discussion of potentially criminal facts, despite that public bodies should, in their communications, resort to the necessary reserve to avoid creating the conviction that the arguido is in fact guilty (cf. Konstas vs Greece of 28/11/ 11 (n° 053466/071).
That referred principle may even impose, on the threshold of criminal proceedings, respect for an absolutory penal decision or even for a decision of archiving by the judicial authorities involved in subsequent proceedings (Allen vs United-Kingdom, of 12/7/2013, n° 1025424/0991).
Nevertheless, the Court of Justice of the European Union has decided that the principle of presumption of innocence does not apply to subsequent civil proceedings (mainly compensatory) to criminal proceedings, at risk of depriving the victim of her own right to accede to the courts and to be compensated (cf. the judgements in Y vs Norvvay (56568/00) of 11/ 5/2003 and Diacendo vs Italy (124/04) of 05/07/2012).
The presumption of innocence, because it's only a presumption, cannot overcome the search for the truth and the right of citizens to the truth. It cannot as well prevent public criticism and public scrutiny of the functioning of justice. The same happens, furthermore, with the attempt to demonstrate the innocence of a condemned person and thereby to move aside the mark of the conviction. The search for truth, including the truth about justice, has always been one of the main justifications of freedom of expression.
It must be reminded that, in the present case, the issue isn't the appellants' penal liability, in other words their innocence or their guilt concerning the facts leading to the disappearance of her daughter doesn't have to be appreciated here.
What is in discussion here is merely the civil liability of the respondents, on the grounds that they have expressed and disclosed the above-mentioned thesis/opinion on the disappearance in question.
It follows that the outcome of the present case is not such as to call into question the extra-procedural dimension of the presumption of innocence.
This means that, even if the action does not proceed, it will not imply, even in the eyes of the community. any consideration of the appellants' liability, because such outcome will never will be able to be equated to an observation of respective culpability (cf. on this topic the judgements Del Latte vs Holland (n°44760/98) of 9/11/2004 and Cheena vs Belgium of 9/5/2016).
In addition, we are faced with a decision of filing by the Public Ministry which is subject to modification through various ways.
Thus, in addition to the recourse to the jurisdictional way, by opening the inquiry (note : the phase that follows the criminal investigation and is placed under the inquiry judge's authority, art. 287° of the CPP) and the complaint to the hierarchical superior (art. 278° of the CPP), the investigation can be reopened if new elements of evidence arise invalidating the grounds called upon by the Public Ministry in the filing dispatch (art. 279° of the CPP).
This is indeed even mentioned in the Note to the Social Communication released by the Attorney General's office on 21/7/2008 and announcing that the filing of the investigation had been decided. It was reported that it could be reopened on the initiative of the Public Ministry or at the request of any interested party if new elements of evidence arise triggering serious, pertinent and consequential proceedings (n°14 of the proven facts).
In this way, as the aforementioned filing order is not a judicial decision stricto senso, nor does it assume a definitive form, less would it be justified invoking the principle of the presumption of innocence to restrain freedom of expression.
And the safeguarding of the authority of the judicial power (cf. article 10°-2 of the ECHR) is not alluded to, since is definitely outdated the traditional idea that criticism against the judicial power must be proscribed as it contributes to the undermining of its dignity, authority and credibility in the long term. The best guarantee of dignity of all State institutions in the long run consists in its permanent opening to public criticism.
And let not be said, too, that the appellants were cleared by the order of filing the criminal proceedings.
In fact, that dispatch was not proclaimed by virtue of the Public Ministry having gained the conviction that the appellants had not committed any crime (cf. art. 277° of the CPP).
There is, therefore, a remarkable difference, and not merely a semantic one, between the legally admissible grounds of the filing order.
Thus, it does not appear acceptable to consider that the alluded dispatch, based on the insufficiency of evidence, should be treated as evidence of innocence.
We consider, therefore, that the invocation of breach of the principle of presumption of innocence should not be upheld. That principle does not fall under the decision about the question that has to be resolved.
But was the freedom of expression of the respondent conditioned by the functions he performed and did those, even when he was retired, impose on him the reserve duty, as was upheld in the first instance sentence and is reaffirmed by the appellants ?
It is certain that the respondent, in the capacity of retired Judicial Police agent, continues to be linked to the public service, keeping furthermore the rights and duties that do not depend on the activity situation (cf. art 74°-1 of the Retirement Statute, approved by DL n°498/72 of 9/12).
As referred to in the Attorney General Consultative Council opinion of 16.12.06, quoted in the first instance sentence, by Esteves Remédio, the doctrine considers as duties of the retired that do not depend on the activity situation the duty of loyalty, the duty of non-disclosure and the duty of appropriate conduct, this being insistently reported to the abstention from committing crimes.
… of his charge, and that are not aimed at the public sphere. (quoting art. 3° of the disciplinary statute).
And, furthermore, the non-disclosure duty extends beyond the exercise of one's functions, remaining in the course of retirement, but, as in the activity situation, it is required that the conduct affects in a pertinent way the functioning of the service or the dignity and the prestige of the function or of the Administration.
It should be noted that nowhere in the legislation quoted regarding this in the first instance sentence, it is alluded to the reserve duty.
In this way the art. 5°-2e of the DL 196/94 of 21/7, which approved the Disciplinary Regulation of the Judiciary Police, expressly refers to 'the non-disclosure duty'.
For its part, the art.12° of the DL n°275-A/2000 of the 9/1, which approved the new Organic Law of the Judicial Police, is subject to the epigraph "Secret of justice and professional" (cf. article 149° regarding retired agents).
Now, as Cunha Rodrigues wrote in Justice and Communication, BFD 68 (1992), p.124, 'nondisclosure' should not be confused with 'reserve'.
In the present case and on the topic of the non-disclosure duty or of the secrecy of justice, which remains in the course of retirement, it must be understood that we are faced with a functional obligation which essentially protects the interests of the service to which the respondent belonged, namely the effectiveness of the criminal investigation.
Still, the facts at stake had already been made public by the judicial authority and widely debated, both nationally and internationally. Moreover the investigation was already closed.
On the other hand, the eventual breach of the non-disclosure duty on the part of the respondent would not thrust out, in the sphere of private individuals, any subjective rights or legally protected interests, and would not therefore be considered as a source of illicitness.
In addition, the ECHR, in similar situations, takes mainly into account the importance of the cooperation of an enlightened and well-informed public to the proper functioning of justice (cf. Saygili and Others vs Turkey of 8/1/08 and July and Sarl Liberation vs France of 14/2/08).
We therefore consider that freedom of expression does not either have to yield to the invoked functional duty borne by the respondent, reason why his conduct was not illicit in the terms taken into account in the first instance sentence.
In our view, the judgement under appeal is correct by understanding that the argumentation of the First Instance may be upheld and by stating that it would be hardly understandable that a civil servant, even more a retired one, should carry on his silence and reserve duties, thus limiting the exercise of his right to opinion as to the interpretation of facts already made public by the judicial authority and widely discussed (actually largely at the instigation of the protagonists themselves) in national and international media.
Contrary to what the applicants claim, in order to subsume the legal provision for unlawfulness considered by article 484° of the CC, it is not enough that the fact stated or disclosed is susceptible, given the circumstances of the case, to undermine the prestige enjoyed by a person or the good image of that person in the social environment.
In fact, according to the Latin juridical axiom, qui jure suo utitur nemini facit injuriam (note : he who draws upon his legal rights harms no one).
This means that who acts in the exercise of a right is acting in accordance with the legal system and cannot therefore be held responsible in a civil point of view (see Antunes Varela, General Obligations, p.36).
Thus, when facts are imputed or expressed value judgements offensive to the honour of a public figure, it is possible that freedom of expression is being legitimately exercised.
That being, in the matter of expressing value judgements, the right to freedom of expression has a broader supporting attraction, given even the exceptional nature of the obligation to compensate for value judgements.
This does not preclude the maintenance of a concern for a balanced legal and concrete solution to the conflict between freedom of expression and the honour of public figures.
What these notions cannot be submitted to is to any anticipated judgement of abstract preference for any of them, since they meet two fundamental rights, constitutionally consecrated, and that hierarchically occupy the same place.
… taking into account the necessary balancing criteria evinced by this specific case.
These criteria have already been set out in the present judgement, as are in particular the achievement of a public interest, the public status of the alluded individuals, the sufficient factual basis of the ventured value judgements and the nature thereof, as well as the respective context (having a background of heated controversy on a matter of relevant public interest).
We consider that, in this case, in view of the verified matter of facts, the exercise of freedom of expression was contained within limits which must be considered admissible in a (post-) modern democratic society, open and plural, in view of the aforementioned criteria of equilibrium and the alluded principle of proportionality, which excludes the unlawfulness of the honour injury of the appellants.
Such a conclusion results from the interpretation of the internal norms in conformity with the Constitution, but also with the European Convention on Human Rights, read by the lawcase compendium of the ECHR.
According to Jónatas Machado, in "Freedom of Expression - Constitutional Dimensions", p. 750, the measure of civil and penal protection of personality rights is determined on the basis of the constitutional parameters of the freedoms of communication, refusing any systematic-immanent enhancing autonomy of those branches of law and emphasising particularly the constitutional purpose of creating a public sphere of open and uninhibited discussion of matters of general interest, this objective having always to be present in the analysis of the results of the application of the law.
Adding, this revere professor, in "Freedom of Expression, Public Interest", op. cit. p.74, that The preferential position of freedom of expression, in its quality of precondition for the democratic functioning of the political system, is an indisputable constitutional truth.
And alluding, more ahead, last op. cit. p. 77, to the duty to interpret the legal norms on the protection of honour, good name and reputation in harmony with the Constitution, in order to serve the promotion of constitutional purposes substantiating the protection of a free and democratic society where questions of public interest seal the subject of information and free and open discussion.
… in confrontation with freedom of expression, so as not to compromise its central role in a democratic society.
From the case-law which has been ratified by the ECHR, it results an imposition on the mode of thinking : it is not justified wondering straightaway whether a particular piece of journalism offends someone. The starting point should rather be the freedom enjoyed by the respective author(s). Only after it should be questioned whether is justified – in view of the referential criteria of the same court, including a proper margin of appreciation on the part of the internal organs of each of the States signatory of the Convention – the restrictive interference in the field of that same freedom and the consequent passage to legal sanctions.
For that matter, the Constitutional Court has affirmed a clear historic will of the constituent legislator to follow the step of the European jurisprudence in the development of the fundamental rights likewise provided for in The Convention and the Constitution (cf. the Ruling of the Constitutional Court 157/2001, in D.R. Serie I de 10/5/01).
Faced with a settled case-law by the ECHR, as it happens in cases such as the present one, the Portuguese courts cannot but be influenced by the European paradigm of human rights.
This, however, does not mean resolving the conflict in question with an abstract preference for freedom of expression, but rather linking to the assumptions, i.e. to the European criteria for conflict resolution.
What is at stake, fundamentally, is to identify the legal good that will be, concretely, prevailing, taking into account that, in each conflict resolution, the balance pans, to begin with, are in a position of equilibrium, since freedom of expression and honour must start from a position of equality.
For this purpose, it is necessary to introduce the respective evaluation criteria in the pan of freedom of expression or in the pan of honour.
And it is playing with weights and counterweights that, in the end, it will appear which of the pans weighs more.
Well, in the present case, as it results from the foregoing, the pan that weighs more and is the freedom of expression one.
Which amounts to saying that this is the legal good that, in this case, prevails.
Thus we shall have to conclude that, in the present case, prevail the rights of the respondents to freedom of expression and information and to freedom of the press and of the media.
Therefore the sentence under appeal does not deserve censure while excluding the unlawfulness of the respondents' conduct and, consequently, absolving them of all requests.
Dismissed, accordingly, are the conclusions of the appellants' allegations. We do not reckon that this judgement has violated any legal rule turned into the CRP , but rather we understood, as it results from what has already been discussed, that the interpretation of the norms applicable to this case was made in accordance with the Constitution.
Given what has been said, the request of review is denied and the appealed judgement confirmed.


text:
The authors are 3rd year students of NLU, Jodhpur.
The Insolvency and Bankruptcy Cody, 2016 [“the Code”] received the official sanction[i]recognizing its constitutional tryst in entirety in quite a significant verdict. We still remember the packed courtroom to hear the amusing and intelligent arguments of the virtuoso lawyers. IBC, a landmark aspired by high-ranked officials for improving the financial structure of the country (seeI do as I doby Raghuram G. Rajan and Of Counselby Arvind Subramanian) has sustained the constitutional scrutiny. It is worth mentioning that the judgment is beautifully written and structured. Though at certain places one might feel less satisfied with the restricted reasoning of the Court, however, such concession can be granted for the Court’s recognition of limited judicial review in economic matters at the outset of the judgment. Here, we endeavour to present a brief overview of the judgment spiced with our critique.
Further, the Court relied on its own judgment in R.K. Garg v. Union of India[ii]to hold that the laws relating to economic activities should be viewed with greater latitude as compared to laws relating to civil rights. As there is no straitjacket formula to solve an economic problem, the legislature will employ trial and error method to find solution of such problems. The Court, therefore, should exercise judicial restraint in interfering with legislations like the Code, and question the constitutionality only when such legislations are ‘palpably arbitrary, manifestly unjust and glaringly unconstitutional’.
The Court, after establishing the premise behind presuming the constitutionality of the court, delved into the objects underlined the Code – to bring the insolvency law in India under a single unified umbrella, to speed up the insolvency process and to ensure revival and continuation of the corporate debtor. Prior to the Code, the insolvency matters were dealt by multiple fora under various laws such as Sick Industrial Companies (Special Provisions) Act, 1985; the Recovery of Debts Due to Banks and Financial Institutions Act, 1993; the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; and the Companies Act, 2013.
The petitioner had successfully argued that the constitution of the NCLAT, with its lone bench in Delhi, goes against the judgment of the Court in Madras Bar Association v. Union of India[iii](2014) where it was held that permanent benches of NCLAT have to be constituted wherever there is a seat of the High Court, or circuit benches be constituted. The Court has ordered the Union of establish circuit benches of NCLAT within 6 months.
Next, the petitioner argued that in Madras Bar Association v Union of India[iv](2015), it was held that the administrative support to all the tribunals should be from the Ministry of Law and Justice; therefore, the NCLAT should not function under the Ministry of Corporate Affairs. Though the Government cited Article 77(3) of the Constitution and Delhi International Airport Limited v. International Lease Finance Corporation and Ors.[v]to argue that the allocation of rules of business among various Ministries is mandatory, the Court accepted petitioner’s claim. However, we see the existing regime, the Ministry of Corporate Affairs deals exclusively with all the matters pertaining to the administration of companies – the Code;[vi]the Insolvency and Bankruptcy Board of India; the Competition Commission of India; the Companies Act, et al. Therefore, we argue that for better corporate governance, NCLT and NCLAT should continue to function under the Ministry of Corporate Affairs only. This goes in line with the existing setup wherein Ministries provide administrative support to their corresponding tribunals. For instance, Department of Telecommunication administers Telecom Disputes Settlement and Appellate Tribunal; Ministry of Environment, Forest and Climate Change administers National Green Tribunal and Department of Revenue administers the GST Appellate Tribunal.
Financial debt is given for establishment of business and keeping the business as a going concern in an efficient manner. Operational debt is generated as part of a business activity owing to exchange of goods and services, including employment.
Evidence of debt is readily available with the financial creditor and in the records of information utilities. The information utilities are under the duty to send notice to the debtor before recording any debt for verification purposes. All operational creditors might not have accurate account of all liabilities in verifiable form due to its recurring nature. It increases the possibility of disputed debts.
It is generally given in large sum and by a small number of persons. It is given in small sum by a large number of persons.
It is a secured debt. Sometimes, it is not secured against collaterals.
Here, the contracts provide a specified repayment schedule, wherein defaults entitle financial creditors to recall a loan in totality. The nature of contract is different. Instead, defaults generally lead to initiation of dispute resolution process.
Financial creditors are involved with assessing the viability of the debtor from the very beginning. Due to the lack of information, the operational creditors are not in the capacity to keep a regular check on the viability of the business.
Additionally, the Court cited Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016; Section 420 of the Companies Act, 2013 and Rules 11, 34 and 37 of the NCLT Rules, 2016 to establish that principles of natural justice have been upheld by obligating the creditor and the adjudicating authority to send a notice to the debtor on acceptance of the application.
It was followed by an elegant use of interpretative mechanism to further distinguish the two. The Court identified the meaning of the terms ‘claim’, ‘debt’ and ‘dispute’ to establish that a claim gives rise to a debt, and a dispute occurs only when such debt becomes due and payable but is not paid by the debtor. As the Code requires the financial creditor to prove a ‘default’, whilst the operational debtor is merely required to prove a ‘claim’, the distinction becomes reasonable. This policy was identified as a move away from the concept of ‘inability to pay debts’ to ‘determination of defaults’ to enable the financial creditor to timely effectuate reconstruction based on the documentary evidences.
The Code mandates the payment to the operational creditors in priority to the financial creditors.
The Court considered data of 80 cases that have been resolved since the Code has been implemented to indicate the priority given to the operational creditor.
Next up was a challenge of arbitrariness against Section 12-A of the Code which allows the withdrawal of application from the adjudicating authority by the approval of 90% voting share of the Committee of Creditors. The court upheld the threshold of 90% recognizing that once a proceeding is initiated, it is a collective proceeding in rem. Therefore, any withdrawal of such proceedings has to be effectuated only with all the financial creditors have put their heads together. Though it could be argued that ‘90%’ is a random choice and is arbitrary, however, this does not fulfil the threshold of Article 14 – manifest arbitrariness. The Court went on to refer to Section 60 of the Code to establish that the mechanism is free from possibilities of unfair withdrawal as the NCLT is the final approving authority, whose decision can be further challenged in the NCLAT.
The next challenge of the petitioners was on the information utilities itself. It was argued that they have been established for mere profit purposes and are not properly regulated, thus, their account cannot be treated as conclusive proof of default. The Court considered the regime of credit information companies, followed by the information utilities to appreciate the purpose of reducing information asymmetry, improving credit risk assessment and pace up the resolution process. The Court then considered the Information Utilities Regulations, 2017 to appreciate the expedite mechanism for verification and authentication of information. However, the Government conceded in favour of the petitioners, and the Court ruled that the information is only a prima facie evidence of default, which can be rebutted.
The petitioners then challenged the adjudicatory powers of the resolution professional, a claim refuted by the Court by the plain reading of the Code. It was held that the powers of the interim resolution professional under Section 18 of the Code and CIRP Regulations, 2016 are merely administrative in nature and restricted to the determination and verification of the amount of claim. It is the adjudicating authority who can determine and effectuate the appropriate relief based on the IRP’s report. To clarify the difference between administrative and quasi-judicial powers, the Court referred to the powers of the liquidator under the Code. The determination of the value of claim by the liquidator is in the nature of a ‘decision’, thus an appeal lies against such determination. However, the IRP is only empowered to submit its report for the final determination by the adjudicating authority.
It was followed by a challenge against Section 29A of the Code, which enlists certain person who are ineligible to be a resolution applicant. The provision was inserted in the Code by the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2017 to disqualify corporate debtors, their relatives, undischarged insolvent, one prohibited under the SEBI Act et al.from acting as resolution applicant to facilitate effective corporate governance. The Court referred to its judgment in ArcelorMittal India Private Limited v. Satish Kumar Gupta and Ors.[vii]to hold that the principles of Salomon v. A. Salomon and Co. Ltd.regarding separate corporate entity cannot be applied, and all those persons who acted jointly or in concert to drag the company to a stage of resolution, shall be disqualified from being the resolution applicant.
The Court was then asked to analyse whether the retrospective application of some provisions of the Code renders it unconstitutional. A statute can be construed as retrospective if its provisions operates on an antecedent set of facts but affects a vested right. As a resolution applicant does not have any vested right to be so appointed, the court concluded that there is no need to discuss the question of retrospectivity.
Next, the ineligibility of a corporate debtor to act as resolution applicant whose assets have been declared as NPAs in accordance with the guidelines of the Reserve Bank of India, and remained such for the period of one year, was challenged. The relevant guidelines declare an account as an NPA only if defaults made by a corporate debtor are not resolved within 3 months. The Court held that if a person is unable to service his own debt within the period of 15 months, then he cannot be allowed to allowed to become a resolution applicant. The said grace period is a question of legislative policy, which is not worth interfering.
The next challenge was pertaining to the restriction of related party to act as resolution professional. The Court, applying the ‘doctrine of nexus’, held that the reason behind not allowing related parties to be a resolution professional is the connection of such parties to the business activities or the resolution applicant. Such connections deem them disqualified to enable the Committee of Creditors to function independently.
Lastly, the court further held that the exemption of Micro, Small and Medium Enterprises from Section 29(A) is based on the rationale that the only interested parties in such enterprises are their promoters, therefore, not many resolution applicants might turn up and it would lead to the liquidation of the company. Liquidation is not in consonance with the objective of the Code.
Before parting, we appreciate the approach of the Court in drafting the judgment. The Court has resorted to the reports of the Bankruptcy Law Reforms Committee (2016), Joint Parliamentary Committee (2016), Insolvency Law Committee (2018) and the Statement of Objects and Reasons on multiple occasions. The introductory speech of the Finance Minister while moving the IBC (Amendment) Ordinance, 2017 and recommendations of the Siddiqui Working Group, 1999 on Credit Information Companies were also resorted to once. This shows that the Court is moving from the strict interpretation mechanism to the purposive interpretation mechanism, trying best to uphold the intentions of the legislature and increasing synergy between the two organs of the Government. We hope that such approach continues to prevail.
[i]Swiss Ribbons Pvt. Ltd. v. Union of India, Writ Petition (Civil) No. 99 of 2018; IBC: Supreme Court Upholds Validity of Insolvency & Bankruptcy Code,Live Law(Jan. 25, 2019).
[ii]R. K. Garg v. Union of India, (1981) 4 SCC 675.
[iii]Madras Bar Association v. Union of India, (2014) 10 SCC 1.
[iv]Madras Bar Association v. Union of India, (2015) 8 SCC 583.
[v]Delhi International Airport Ltd. v. International Lease Finance Corporation and Ors., (2015) 8 SCC 446.
[vi]Government of India (Allocation of Business Rules), 1961 as amended upto Amendment Series no. 346 dated 2ndNov. 2018.
[vii]ArcelorMittal India Private Limited v. Satish Kumar Gupta and Ors., Civil Appeal Nos. 9402-9405/2018.

matches: v. v. v. v. v. v. v. v. v. v. v.


Maryland imposes on railroads a franchise tax, measured by gross receipts, apportioned to the length of their lines within the State. Appellant railroad operates, wholly in Baltimore, a marine terminal and rail lines connecting the terminal with trunkline railroads. Its operating revenues are derived from switching freight cars; storage pending forwarding; wharfage; weighing loaded freight cars, and rentals paid by a stevedoring company for the use of a crane.
1. The Import-Export Clause, Art. I, § 10, cl. 2, of the Federal Constitution is not violated by the inclusion, in the gross receipts by which the tax is measured, of revenues derived by appellant from its handling of goods moving in foreign trade. Pp. 340 U. S. 512 -515.
(a) The tax in this case is not on the goods, but on the handling of them at the port. Pp. 340 U. S. 513 -515.
(b) Since appellant merely rents a crane for loading and unloading, and does not itself do the stevedoring, it is unnecessary to decide whether loading for export and unloading for import are immune from tax under the Import-Export Clause. P. 340 U. S. 515 .
(c) Any activity more remote than loading for export and unloading for import does not commence the movement of the commodities abroad, nor end their arrival, and therefore is not a part of the export or import process. P. 340 U. S. 515 .
2. The tax is not invalid under the Commerce Clause, since the State may constitutionally impose a nondiscriminatory tax on gross receipts from interstate transportation, apportioned according to mileage within the State. Greyhound Lines v. Mealey, 334 U. S. 653 . Pp. 340 U. S. 515 -516.
Md. ___, 73 A.2d 12. On appeal to this Court, affirmed, p 340 U. S. 516 .
The State of Maryland imposes on steam railroad companies a franchise tax, measured by gross receipts, apportioned to the length of their lines within the State. [ Footnote 1 ] Appellant Canton Railroad Company, a Maryland corporation, challenges the validity of the tax under the Import-Export Clause of the Constitution, Art. I, § 10, cl. 2, insofar as the gross income by which the taxes measured includes revenues derived from the handling of goods moving in foreign trade.
Switching freight cars from the piers to the lines of connecting railroads.
Storage pending forwarding, for which a charge is made for each day beyond a free period.
Wharfage, or the privilege of using Canton's piers for the transfer of cargo to lighters or to trucks.
Weighing of loaded freight cars.
Furnishing a crane for use in unloading vessels. This crane is operated by a stevedoring company, which pays Canton a set charge per ton for the "crane privilege."
A substantial proportion of the freight moved to and from the port consists of exports from and imports into the United States. In its report to the State Tax Commission for 1946, Canton showed gross receipts from its railroad business in Maryland of $1,588,744.48, of which it claimed $705,957.21 to be exempt from taxation because derived from operations in foreign commerce. After a hearing, the Commission rejected Canton's contention that a part of its gross receipts was constitutionally exempt from the tax, assessed its gross receipts at the higher figure, and imposed a tax of.$39,092.34. The Commission's order was affirmed both by the Baltimore Circuit Court and by the Court of Appeals of Maryland, two judges dissenting. Western Maryland Ry. Co. v. State Tax Commission, ___ Md. ___, 73 A.2d 12.
The case is here on appeal.
The Maryland court held that the tax does not violate this provision of the Constitution, and we agree.
the port. But when the tax is on activities connected with the export or import, the range of immunity cannot be so wide.
To export means to carry or send abroad; to import means to bring into the country. Those acts begin and end at water's edge. The broader definition which appellant tenders distorts the ordinary meaning of the terms. It would lead back to every forest, mine, and factory in the land, and create a zone of tax immunity never before imagined. For if the handling of the goods at the port were part of the export process, so would hauling them to or from distant points, or perhaps mining them or manufacturing them. The phase of the process would make no difference, so long as the goods were in fact, committed to export or had arrived as imports.
Appellant claims that loading and unloading are a part of its activities. But close examination of the record indicates that it merely rents a crane for loading and unloading, and does not itself do the stevedoring work. Hence, we need not decide whether loading for export and unloading for import are immune from tax by reason of the Import-Export Clause. Cf. Joseph v. Carter & Weekes Stevedoring Co., 330 U. S. 422 .
We do conclude, however, that any activity more remote than that does not commence the movement of the commodities abroad, nor end their arrival, and therefore is not a part of the export or import process.
an apportionment according to the mileage within the state [ Footnote 3 ] is an approved method. Central Greyhound Lines of New York v. Mealey, 334 U. S. 653 , 334 U. S. 663 .
Art. 81, §§ 94 1/2 and 95; Md.Ann.Code (1943 Supp.).
This case involved a federal tax equivalent to 3 percent of the price "Upon all tennis rackets, golf clubs, baseball bats," etc. Act of Oct. 3, 1917, § 600(f), 40 Stat. 300, 316. It presented, as did the Fairbank, Hvoslef, and Thames & Mersey Ins. Co. cases, a question under Art. I, § 9, cl. 5 of the Constitution, which provides, "No Tax or Duty shall be laid on Articles exported from any State."
In this case, I reserve judgment in the belief that today's decision of the Court may be found, upon consideration of matters not briefed or argued, to be untenable.
One of the fundamental federal policies, established by the Constitution itself, is that "No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another. . . ." Art. I, § 9, cl. 6. This policy is further implemented by a requirement that federal duties, imposts and excises, be uniform, Art. I, § 8, cl. 1, and by a prohibition of any federal tax or duty on articles exported from a state, Art. I, § 9, cl. 5. But this policy of equality of access to the high seas can also be upset by the states. Hence, the Constitution forbids any state, without the consent of Congress, to lay any imposts or duties on imports or exports, except to pay the cost of inspection laws. Art. I, § 10, cl. 2.
strategic one which may be exploited if not restrained. Political influence of wealthy and populous port areas was feared in the making of federal law -- hence the restrictions on Congress. The disposition of cities and states to exploit their location astride the Nation's portals also was feared -- hence the restriction on the states.
If the roads to the ports may be obstructed with local regulation and taxes, inland producers may be made to pay tribute to the seaboard for the privilege of exportation, and the longer the road to port, the more localities that may lay burdens on the passing traffic. The evident policy of the Constitution is to avoid these burdens and maintain free and equal access to foreign ports for the inland areas. If the constitutional policy can be avoided by shifting the tax from the exported article itself to some incident such as carriage, unavoidable in the process of exportation, then the policy is a practical nullity. I think prohibition of a tax on exports and imports goes beyond exempting specific articles from direct ad valorem duties -- it prohibits taxing exports and imports as a process.
This is a matter of giving the inland farms and factories a fair access to the sea which will enable them to compete in foreign commerce, as well as to make imports as equally available as possible, regardless of distance from port. Ocean rates to a given foreign port are the same from all Atlantic ports, so that any differences in the costs of reaching the coast from the inland cannot be offset and represent net differences in the costs of reaching foreign markets.
U.S. 197; Texas & P. R. Co. v. United States, 289 U. S. 627 . In the latter case, this Court recognized that export and import shipments, although not made on through bills, might lawfully be transported at rates below those charged for domestic traffic between the same points. 289 U.S. at 289 U. S. 636 . The differential, I believe, is sometimes as much as fifty percent of the local tariff over the same route. Of course, if the export character of the goods is not to be recognized until they are ready to board or have boarded ship, this is a rank discrimination against local shippers quite without justification.
What Maryland has done, if these goods while in transit do constitute exports, is to tax gross proceeds of their transportation and handling, not merely the profits therefrom. This adds directly to the cost of their reaching shipside, and the greater distance they travel, the greater possible accumulation of tax burden. Clearly, this is an obstruction in the path of the federal policy.
However, the effect of the federal policy on the validity of the Maryland tax was not advanced in the courts below nor here by railroad counsel, so I do not wish to express a final view on the matter. But I suspect today's decision will cause mischief in quarters we have not considered.
MR. JUSTICE FRANKFURTER joins this opinion.
** As demonstrative that Congress is vitally concerned about exports and imports, see 15 U.S.C. § 173, respecting the annual report on statistics of commerce required of the Director of the Bureau of Foreign and Domestic Commerce, in which he must outline the "kinds, quantities, and values" of all articles exported or imported, showing the exports to and imports from each foreign country and their values, the exports being required to be broken down into those manufactured in the United States and their value, and those manufactured in other countries and their value.
"any person which holds itself out to the general public to engage in the transportation by water in interstate or foreign commerce of passengers or property. . . ."
"It shall be the duty of common carriers by water to establish reasonable through routes . . . with common carriers by railroad . . . and just and reasonable rates . . . applicable thereto. . . . Common carriers by water may establish reasonable through routes and rates . . . with common carriers by motor vehicle. . . ."
"It shall be unlawful for any common carrier by water to . . . give . . . any undue or unreasonable preference or advantage to any particular person, port, . . . territory, or description of traffic. . . ."
"Every common carrier by water shall file with the Commission and print, and keep open to public inspection tariffs showing all rates, fares, charges, classifications, rules, regulations, and practices for the transportation in interstate or foreign commerce of passengers and property between places on its own route, and between such places and places on the route of any other such carrier or on the route of any common carrier by railroad or by motor vehicle, when a through route and joint rate shall have been established. . . ."
"If any common carrier subject to this chapter and chapters 8 and 12 of this title enters into arrangements with any water carrier operating from a port in the United States to a foreign country . . . for the handling of through business between interior points of the United States and such foreign country, the Commission may by order require such common carrier to enter into similar arrangements with any or all other lines of steamships operating from said port to the same foreign country."
The ever-present concern with through routes and joint rates would appear a strong indication that the Congress regards goods as in export from the time they are first consigned to a carrier for a foreign destination, not from the time they reach the ship on which they are to be carried.