Monday, 18 May 2009

Another “McCannipulation”?

Gerry and Kate McCann will sue Gonçalo Amaral, for defamation, according to several Portuguese and British newspapers. The story is based on a statement issued by the parents of Madeleine McCann and also in some ignorance of legal matters. What Mr. Edward Smethurst told “The Sun” shows better what the McCann are planning, with a little help of a Portuguese lawyer, Mrs. Isabel Duarte, who is very close to “Expresso”, a leading supporter of the McCann version of events (If you want to know why, check this)

The McCann are not filling a crime complaint against Mr. Gonçalo Amaral – they are suing in a civil court, not in a criminal court. Why? Because they are not looking for a conviction for defamation in a criminal court, they are looking for receiving a large amount of damages, in a civil court – something that, as Mrs. Isabel Duarte knows, is easier to achieve, in the Portuguese legal system, comparing to a conviction for defamation on a criminal court, in a case that is related with Freedom of Expression, Opinion and Press Freedom.

Just another detail: Why now? When was Mr. Gonçalo's book published? Could the reason be the lack of public reaction to the last “investigation” and “new suspects” revealed?


mariacpois said...

Sempre um enorme prazer ler os Seus esclarecimentos,sucintos,inteligentes,bem fundamentados.
Os McTioPatinhas .......

guerra said...

Thanks Paulo for clarifying matters. I'm not to familiar how a civil court is run. I would imagine that proving that someone died in that apartment would also be easier in a civil court. If for some reason Mr. Amaral were to lose, I suggest that he avoid paying them anyways.

Anonymous said...

Paulo, I was under the impression that nearly all private litigation cases were processed through the civil courts?

Civil law resolves private disputes and criminal resolves crimes against society. Amaral could not be prosecuted in a criminal court because his dispute is only with the McCanns.

Criminal disputes are invariably consigned to serious fraud and disputes of a corporate nature. I am sure this is true the world over.

This would explain it. They simply wouldn't have a criminal case against him.

Paulo Reis said...

Dear Blackwatch (aka last anonymous...)

You are wrong and I'm not confused. Try to learn a little bit about the Portuguese legal system. Civil courts are for non-criminal cases, public or private. Criminal courts are for crimes, either public or private crimes. Defamation and/or slander are crimes, according to the Portuguese Penal Code. But I agree with you, when you say that the McCann know they wouldn't have a criminal case against Mr. Amaral...

Paulo Reis

Anonymous said...

Hmmm Paulo, but there are civil cases and criminal cases all the same and Amaral could not be tried in a criminal court over a civil matter. This is a civil matter - do matter how much you may wish to warp it. The McCann's legal advisors would not even contemplate taking Amaral through a criminal court and no court in the world would allow it.

Defamation is a 'common law'. A 'civil offence' and this is a very regular trend in international law (with the exception of some banana states like Haiti)

Okay: can you tell me how the McCanns could accuse Amaral of a criminal offence?

I think you will find that defamation is not a criminal offence in the context of their claims - it is a civil offence.

Your most recent report was very very long. You are sounding a little edgy.

How's your pal Levy? Still in 'Sri Brussels'?

Anonymous said...

In Portugal, Criminal Defamation (and 'Insult Laws') are reserved almost exclusively to insults against the Royal House or senior government persons carrying out state activities - and even this rule is seldom applied.

You can have both civil fines and criminal fines (you should know Paulo, didn't you receive a criminal fine in Macau?).

The current record libel payment in Portugal is €500,000 (£338,000) but it is more likely to be around the €100,000 mark if they are successful.

In their defamation threats against the Tal & Qual newspaper it was rumoured they had the option of both civil and criminal action. However, 24 Horas reported that the couple did not request civil compensation.

Look how much trouble the Portuguese Government had charging Pact Of Silece journalist Felícia Cabrita with these kinds of offences?

It's quite simple: civil cases are quicker and tend to result in successful lawsuits. You've said as much yourself. A criminal case could drag on for months if not years.

And yes, they could receive windfall pay-outs from either criminal or civil offences.

They are obviously choosing civil because it is quicker and more straightforward.

Paulo Reis said...

Dear Anonymous, aka Blackwatch,

There is no Royal House in Portugal... I was sentenced in Macau, not fined...

Portuguese penal Code on "Defamation":

Do TÍTULO I, "DOS CRIMES CONTRA AS PESSOAS", Capítulo VI, "dos crimes contra a Honra", artigo 180.º (Difamação), do código penal português , diz:

1- Quem, dirigindo-se a terceiro, imputar a outra pessoa, mesmo sob a forma de suspeita, um facto, ou formular sobre ela um juízo, ofensivos da sua honra ou consideração, ou reproduzir uma tal imputação ou juízo, é punido com pena de prisão até 6 meses ou com pena de multa até 240 dias.

2- A conduta não é punível quando: a) A imputação for feita para realizar interesses legítimos; e b) O agente provar a verdade da mesma imputação ou tiver tido fundamento sério para, em boa fé, a reputar verdadeira.

3- Sem prejuízo do disposto nas alíneas b), c) e d) do n.º 2 do artigo 31.º deste Código, o disposto no número anterior não se aplica tratando-se da imputação de facto relativo à intimidade da vida privada e familiar.

4- A boa fé referida na alínea b) do n.º 2 exclui-se quando o agente não tiver cumprido o dever de informação, que as circunstâncias do caso impunham, sobre a verdade da imputação.

5- Quando a imputação for de facto que constitua crime, é também admissível a prova da verdade da imputação, mas limitada à resultante de condenação por sentença transitada em julgado.

It's in Portuguese, but I believe you can understand it