Posted by transfattyacid
It's nice to know that Portuguese judges are as inept at implementing the European convention on Human Rights as British one's.
Joana Morais has a piece on the ruling by Magistrate Amélia Puna Loupo and it makes little legal sense.
Firstly it argues that because the police case against the McCann's was shelved without any culpability being directed against the parents that they are somehow above reproach. This is a favourite trick used by those wishing to abuse the British libel laws. Indeed I can think of one high profile case in which the allegation is that a powerful individual had murdered witnesses to an alledged crime and that because of this was free to sue for libel, on the grounds that there were no witnesses to the alledged crime.
Yet without considering why the police case was dropped - and we know that the McCann case is considered by the British government as a matter of national security - the judge has effectively ridden rough shod over the intention of the Human Rights Act - i.e. to protect the individuals from the abuses of the state.
This decision is the equivalent of Lamarckism.
Since no one knows what has happened to Madeleine McCann, to impose restraint on the most likely outcome - based on no evidence - or more precisely based on a hypothesis of abduction, for which there is no evidence and by witness testimony makes Garry McCann a likely suspect is an abuse of the legal process.
The second reason given was the 'right of personality' - by which we can assume the judge means the right to a family life and protection from defamation.
Which is an insidious argument - given that the Mccann's are protected by the British state - because it argues that if a critic can't accept the national security argument, then 'THINK OF THE CHILDREN' as the Reverend Lovejoy's wife might scream.
Ah yes, motherhood and apple pie the pernicious argument of anti-democrats throughout the ages.
But hold a minute. Is Amaral the first person to suggest that Madeleine Mccann is dead? Is he the only person in the world that believes this?
Of course not.
Yet somehow this judge believes that her perverse ruling will protect the twins. Which is odd since 'behave or I'll do a McCann' has entered the lexicon as surely as threats of the Bogeyman.
It is also strange that by this decision the judge appears to have entered the weird world of the McCann's in which rather than the child be dead, she is somehow locked in a dungeon being raped by a Josef Fritzl figure or that somehow she will re emerge in twenty years time with a couple of kids in tow like Jaycee whats-her-name.
Yeah sure people are innocent until proved guilty - not a luxury enjoyed by Amaral btw - but equally it should be kept in mind the British government's proclivity for playing fast and loose with the judicial system when a trade deal is at stake - and let's not forget that when Gordon Brown sneaked through the back door to sign the Lisbon treaty - two months after he secured the McCann's flight to freedom - he was as keen to talk about the McCann's as he was to discuss the EU.
Frankly this is a decision that spits on the intentions of the authors of the Human Rights Act and proves once again that law is a matter of money and not justice.
Though on a side note, it is interesting how the McCann's love appearing in the civil courts where the burden of proof is on the plaintiff and use their state protection to stay out of the criminal courts where the same burden falls on the defendant.
Transcript & translation by Astro: Amaral's editor has not yet been notified
Gonçalo Amaral – They won’t shut us up, that much is certain.
Sandra Felgueiras (voice over) – For now, the former inspector can still say it without paying a fine, because even if he appeals, this sentence has no suspending effect, which means it has to be obeyed. But by the early afternoon today, Gonçalo Amaral had yet to be notified of the gagging order – verbal, through the book and the DVD – that the court imposed on him. The McCanns have always considered that his conviction, that was never proved, and which attributes to them the concealment of their own daughter, is an injury that had catastrophic effects in the outcome of the case.
Gerry McCann – There’s a lot of people in Portugal who believe that there is evidence, and, further afield, that Madeleine is dead, and if people believe that, they won’t search for her. And they may have information, and they may not come forward with that information.
SF (voice over) – The controversial book has been on the market for a year, but Gerry McCann explains that only now he is advancing with an injunction to prevent new editions, because he had to wait for the translation of the entire process, in order to gain certainties.
GMC – I'm very clear. There is no evidence that Madeleine is dead.
SF (voice over) – Due to a lack of evidence, the case was archived, and even without clues about Madeleine’s whereabouts, at this moment, Gerry only hopes for another outcome from the Portuguese justice: that it forces Gonçalo Amaral to shut up, if only forced by a fine.
source: RTP, Telejornal, 10.09.2009
The banned book and documentary can be seen here
Blood and death scent found on Kate McCann's trousers; Cuddlecat; the wall and floor behind the sofa; Madeleine's t-shirt; the car the McCann's hired more than 20 days after Maddie went missing; and the boot of the hire car - all of which leads people to believe Maddie died in Apartment 5a.