“Therefore, if the previously mentioned archiving dispatch is not in the strict sense a judicial decision, nor does it have a permanent nature, it would be even less justified calling upon the principle of presumption of innocence to restrict the freedom of expression.” “And it cannot be said too that the applicants were declared innocent through the archiving dispatch of the criminal process. In truth, the aforementioned dispatch was not issued due to the fact the Public Ministry had acquired the certainty that the applicants had not practise any crime. Such archival, as was the case, was determined since it was not possible for the Public Ministry to obtain sufficient evidence of the practise of crimes by the appellants. Therefore, there is, a distinct difference, and not merely a semantic one, between the legally admissible grounds of the archiving dispatch. It doesn't therefore seem acceptable to consider the referred dispatch, which is based on the insufficiency of evidence, to be equated to proof of innocence. Thus we consider, the invocation of the violation of the principle of innocence should not be taken into account here, since that principle is not relevant for the decision of the question that we must decide.” in Extracts from the Supreme Court's ruling
by M. Carvalho | J. Morais
In a concise manner, the grounds invoked by the Appellants come down to a technicality.
The Appellants argue the
Public Prosecutor's Archiving Dispatch
filed the criminal investigation under the Code of Criminal Procedure
(CPP) article 277.º, no.1, and that the Supreme Court's ruling states
they were not exonerated within the no.2 of that same article.
In other words, they allege the Public Ministry prosecutor José de
Magalhães e Menezes, and the joint prosecutor João Melchior Gomes
archived the process because they were not suspects of any crimes and
that, on the other hand, the Supreme Court's judgement was wrong to
state that the Archiving Dispatch established that there was not enough
evidence gathered to bring charges.
We will go into the legal explanations in the second section of this
article, but we would like to stress that the appellants and their
lawyer fully dismiss the integrant reasoning and legal groundings of the
archiving dispatch, holding on exclusively to this particular article.
This is invoked by the Appellants within the framework of the
presumption of innocence, despite the fact that this particular point
was never in question. The Supreme Court of Justice went to great
lengths to explain this point, concluding: “It should be noted that in
the present process, the matter of their penal responsibility is not in
dispute, that is, their innocence or culpability, concerning the facts
that lead to their daughter's disappearance, so it does not have to be
appreciated here. What is under discussion is, and only that, the civil
responsibilities of the defendants, due to the fact that they expressed
and divulged the thesis/opinion previously mentioned with respect to
that disappearance. So much so that the outcome of this process is not
susceptible of calling into question the extra processual dimension of
the presumption of innocence. That is, even if the action (lawsuit) is
rejected, that will not imply, even in the general public eye, any
consideration regarding the responsibilities of the Appellants, since
such an outcome can never be equated to an assertion of guilt.”
We will just stress again that the presumption of innocence assists any
defendant of a penal case, i.e. of a criminal process. It must not be
confused with being exonerated nor cleared.
In simpler terms, the archival of the criminal investigation does not
exonerate the Appellants but these will always benefit from the
presumption of innocence should criminal proceedings eventually be
brought against the Appellants. Even though we believe this will never
take place for lack of will and true commitment by the authorities in
both countries.
Finally, the Appellants seem to have opened an unexpected Pandora's box,
their actions may now force a written correction of the article that
should have been used in the Archiving Dispatch .
Quid iuris?
Legal explanations with the valuable insight of a Portuguese jurist
The judgement of the Supreme Court of Justice (STJ) shows that their
arguments are based on two points: firstly, that Gonçalo Amaral's thesis
goes against the right to the presumption of innocence that they enjoy;
secondly, that there is a collision of rights between their honour and
their good name and the right to freedom of expression of Gonçalo Amaral
and, in this case, the later must cede the right to freedom of
expression.
As it is known, the Supreme Court of Justice ruled that there was no
depreciation of the right to presumption of innocence, even because that
issue was not in question. And, they are correct in judgement. The
right to presumption of innocence is extended to all criminal
proceedings, but here we are not in the context of a criminal process,
but rather an action seeking to assess Gonçalo Amaral's civil liability
for the violation of the McCanns' rights. Therefore, there is no
connection between what Gonçalo Amaral has said and the principle of
presumption of innocence in this case, since the presumption of
innocence is only related to the criminal process and here we are in the
context of civil proceedings. The only issue to assess is which of the
fundamental rights in conflict should prevail, and from then a
conclusion can be drawn as to whether or not Gonçalo Amaral has violated
the McCanns' fundamental rights and therefore has to compensate them.
It should be noted this issue was started with the decision of the first
instance court which one could argue had an erroneous assessment of the
situation of conflict of rights - it was the first instance that messed
up by accepting the argument that the principle of the presumption of
innocence was in question at a civil case. Concerning this matter, see
pages 68 and following of the Supreme Court´s ruling.
Then, the other question is, according to the Supreme Court's ruling
(page 70), the conclusion of the Public Ministry in the Archiving
Dispatch is wrong. To clarify: the Archiving Dispatch has a reasoning.
Throughout that reasoning, the prosecutor goes on to say how the facts
were ascertained, how blood was found in the car rented by the McCanns,
that there were traces of blood in the apartment, how the most likely
thesis is that of homicide, but also that it was necessary to admit the
possibility of abduction. Then the prosecutor goes on to say that the
canine markers were not confirmed, that no evidence of the homicide was
collected, but that Madeleine could have been killed in the apartment,
even though it was not possible to conclude by whom; that the abduction
is a possibility to be taken into account due to the witnesses, etc.
That is, the reasoning of the Public Ministry suggests that the filing
is due to lack of sufficient evidence that the McCanns have committed
the crime. However, upon finishing the dispatch, the prosecutor affirms
that the archival is done under art. 277/1 of the CPP, which states that
the archival is determined when it is concluded that the defendants did
not commit the crimes.
In short: the reasoning of the Archiving Dispatch goes in the sense of
art. 277/2 of the CPP, but in the last paragraph the prosecutor states
the archiving is done under the terms of art. 277/1, that is to say, the
reasoning goes towards supporting that "there was not enough evidence
collected to prove that it was the McCanns" but the last sentence goes
in the sense of "it's archived because it was concluded that it was not
the McCanns who committed the crime".
Obviously, there is a contradiction in the Archiving Dispatch. And what
matters is the reasoning. And the reasoning goes in the sense that it
did not collect sufficient evidence that it was the McCanns who
committed the crime. This is what both the Lisbon Court of Appeals and
the Supreme Court of Justice state in their judgements.
Now, it can only be concluded that it was not the arguido who committed
the crime in two situations: when it is concluded that there is no crime
or when it is concluded that the crime was not practised by the
arguido, but by another person.
However, what the Public Ministry prosecutors conclude is that there was
a crime (if not of homicide, at least of abduction). In this scenario,
only if it was known who the real author was, that is, only if the
evidence was conclusive in respect to another person could the
prosecutor state "it was not the McCanns". In fact, what the Public
Ministry concluded was: (1) there was a crime; (2) there is no
conclusive evidence that it was the McCanns. This is the result of the
reasoning of the Archiving Dispatch. Therefore, the filing was made
under art. 277/2 and not of art. 277/1, as, certainly by mistake, the
prosecutor affirms.
It turns out that the McCanns cling, with tooth and nail, to the last
paragraph of the Archiving Dispatch and to the mention of art. 277/1 to
claim that the Public Ministry states that they were not the ones who
committed the crime, and that, thus the Archival Dispatch innocents
them. And therefore, any claim, whatever the source, that they are
guilty or have something to do with their daughter's disappearance is
false and therefore offensive to their honour. This is how crafty the
McCann's thesis is.
The problem with their thesis is that it expires if we take into account
the reasoning of the Archiving Dispatch - that is, that there is
insufficient evidence, so far, to prove that it was them. And that's
where it all goes: the McCanns are not right because the Archiving
Dispatch did not exonerate them (nor it could, unless it was known that
the author of the crime was someone else).
The Lisbon Court of Appeals explained that the McCanns were not right
and why. The Supreme Court of Justice limited itself to corroborating
the position of the Court of Appeals: “It doesn't therefore seem
acceptable to consider the referred dispatch, which is based on the
insufficiency of evidence, to be equated to proof of innocence.”
Now, let us look at what their reasoning for the annulment of the judgement is.
The McCanns allege the Supreme Court has given as proven fact that the
Archiving Dispatch, where the aforementioned last paragraph referring
article 277/1 of the CPP is included, was due to the fact that it was
concluded that they had not committed a crime.
Then, they argue: if the Supreme Court gave that as proven fact, it
cannot then decide that the archiving was done under the article 277/2,
nor it can, therefore conclude that they were not exonerated by the
Public Ministry. And also, the Supreme Court cannot therefore state that
their right to honour has not been violated because, if there was a
declaration of innocence, any statement to the contrary violates the
good name and reputation of the McCanns.
Therefore, they say, there is a contradiction between the proven facts
and the decision of the judgement, which renders it null, an annulment
they now request.
It is our understanding that they are not correct because there is no
contradiction. The Supreme Court says that the Archiving Dispatch is
based on the insufficiency of evidence and, therefore, it is not a
declaration of innocence and then decides in accordance with this
understanding.
What the McCanns do is to read the judgement up to that fact given as
proven and then read the decision, ignoring all of the Supreme Court's
arguments that will justify why the court understands that there is no
declaration of innocence. They may ignore it, but it is there written,
so, without the slightest doubt they will see the request for annulment
rejected as manifestly inadmissible.
The Appellant's request will not be upheld because the Supreme Court has
already explained in the judgement why it reaches to the conclusions
established in the ruling and, as explained, there is no contradiction
between the Supreme Court's reasoning and the decision, which is why the
McCanns' request will be rejected.
In other words, the McCanns' request in which they seek the annulment of
the Supreme Court's ruling is admissible because it meets the
eligibility requirements (it was done at the right time, at the right
court, it invokes an alleged contradiction between the reasoning of the
judgement and its decision, which is the basis for the annulment). But
the request will not be upheld, that is to say, it will be rejected,
because the McCanns' argument cannot be accepted, since the alleged
contradiction does not exist. This is to say that one thing is the
admissibility of the request (which will occur, the request will be
admitted) and another thing is the decision on the request (which will
dismiss it as unfounded).
As to the hypothesis that more than a dilatory strategy, what that they
want is to somehow have an argument to proceed with a complaint to the
ECtHR. One could argue that there are always these tactics when we are
talking about the McCanns. They are free of going to the ECtHR, of
course. But if they go there, it will fall flat on its face. And for the
very reasons previously invoked.
There is a “frivolity” in the annulment request that is a bit pushing
what is acceptable, but still, it can be allowed in the scope of the
broader freedom of expression that lawyers have when they are defending
their clients.
One hopes the Supreme Court judges would state on the annulment's
decision something like: “the Appellants accuse this court of
frivolously drawing conclusions, but those who frivolously ignore the
reasoning of this court's ruling are the Appellants”.
It should be noted that a request for the annulment of a Supreme Court
of Justice ruling is exceptional, rare. And that this request has a
suspensory effect. Being suspensive, means that all the consequences of
the Supreme Court's ruling are suspended, that is, there is no final and
unappealable decision, and therefore, the decision is not definitive
and can not be fulfilled, meaning, yes, that Gonçalo Amaral will have to
wait for the decision of the Supreme Court on the request for
annulment.
Gonçalo Amaral was notified of the request for the annulment of the
Supreme Court´s ruling. As there is always the right to adversarial
proceedings, Gonçalo Amaral can respond, saying that the ruling of the
Supreme Court of Justice does not warrant any rectification or
criticism. Then all parties have to await for the ruling of the Supreme
Court's conference.
The totality of the judges of the civil section is the conference, the
request will be assessed by all judges of the civil section of the
Supreme Court of Justice, including those who have deliberated on the
judgement called into question. The mechanism should be similar to the
distribution of the appeals to the Supreme Court of Justice.
As for the forecast date of the decision, in the Supreme Court of
Justice the deadlines are extended. The judges will first submit the
draft judgement, then the conference of judges will gather in order to
assess the draft, then they will see if there are more votes in favour
of or against, then it will be decided what the ruling is, after the
judge rapporteur will write the final wording of the judgement according
to what was decided by the conference, then the conference will
reconvene for the final vote of the decision and for the presentation of
the defeated votes, if there are any.
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