by M. Carvalho | J. Morais
Since the Supreme Court ruling there was an onslaught of news articles published by the English media which are purely PR spin, a few of those were cut-and-paste in the Portuguese press without delving deep into the spurious claims made in those articles, failing to critically analyse and deconstruct the narrative, failing to provide the Portuguese public with accurate information. In fact most Portuguese newspapers published no more than a few excerpts of the Supreme Court ruling tailored by Lusa news agency, whilst others didn't even bother to publish anything at all.
Soon enough it felt like we were back in 2007, with puerile media wars, as was in the case of an UK tabloid claiming Kate and Gerry McCann had been offered huge bids for exclusive interviews on the 10th anniversary of their daughter's disappearance, a couple Portuguese newspapers echoing that story, and the same UK tabloid featuring the couple’s spokesman, Clarence Mitchell, berating the Portuguese media: “Any claims are spurious nonsense but fits in with the Portuguese agenda” - the Portuguese agenda, the notion that must be imprinted firmly on the mind of the UK public.
Later in the weekend another UK tabloid stalked Gonçalo Amaral in Lisbon, surreptitiously photographed him drinking a beer in a café, placed that photo on their cover, adding a tear-jerking statement by an unnamed McCann family friend: “It appears he has no idea of the hurt or anguish he continues to heap on Madeleine's poor parents”. Forgetting hypocritically to mention those who left their children alone, night after night, while having dinner and wine.
This is just media noise. Let alone regurgitated and dismissed theories by TV cops that lead to desperate media titles asking: “Does this startling theory reveal what REALLY happened to Madeleine McCann?”. Proving once again Betteridge's law of headlines that asserts that any headline that ends in a question mark can be answered by the word No!
The latest claims can be easily deconstructed.
“Their lawyer Isabel Duarte confirmed: “They have now made a complaint over the ruling to that court, it is sort of like an appeal.” Local reports yesterday said the couple were seeking to get the decision thrown out after launching a formal complaint against the judges’ findings.”
If it was lodged at the Supreme Court of Justice (STJ) it is neither an appeal or a formal complaint per se, from what we have read we believe that it must be a request for an annulment of the ruling. A “formal complaint” would have to be, for example, concerning any judges biases, or if there had been any malpractice. In that case the complaint would have been made to the Superior Magistrates Council. The request for annulment lodged to the Supreme court will likely be reviewed by a plenary of judges or by the STJ president.
“Their lawyer confirmed they are fighting the judgement – which could cost them hundreds of thousands and wipe out the “Find Madeleine” fund.”
The request itself for an annulment of the ruling will not wipe out the fund, whilst the bills for their lawyers, image consultants, PR people and fees for legal costs on proceedings started and lost by the couple might. Nevertheless, according to an UK newspaper the McCanns still have “nearly £500,000 invested in an unknown venture”. There is also an ongoing investigation costing over £12 million to UK taxpayers, and an unknown status review of the Portimão's Judiciary Police investigation assigned to a small team of the Judiciary Police in Porto.
Today, the Daily Mail, has published a few excerpts of the leaked nine-pages request lodged at the Supreme Court of Justice last Friday, 17th January.
"The document, drafted by the McCanns' Portuguese lawyer Isabel Duarte and and her colleague Ricardo Correia, says: 'The appellants understand the archiving of the case took place because during the inquiry, sufficient evidence had been collected to show the 'arguidos' had not committed any crime.'
They said the removal of the McCanns' 'arguido' status had legally-binding connotations and claimed the Supreme Court judges' argument it could be easily altered 'lacked foundation.'
Accusing them of acting 'frivolously' and contradicting themselves with their statements about the reasons for the 2008 probe archive, they added: 'It cannot be stated that it is not acceptable that the archiving of the case is considered the equivalent to proof of innocence."
Their main contentious point seems to be about the archiving dispatch. Let's be clear that it was the couple, as applicants, who, via their lawyer brought the matter of innocence and the statement Kate and Gerry McCann had been declared innocent through the shelving of the investigation process.
They claimed:
- “It harms the honour, good name and image of any innocent person, and already previously declared innocent, by the archiving dispatch of the criminal process (whose conclusion is that there are no means of proof or indicia that the person committed any crime), a book, a documentary and an interview external to this criminal process, and the fact that these communication methods do not even make a reference to this archiving dispatch, but mention the exact opposite of what it is there ascertained.” (page 40, 2.2 C)
- “And it further harms the honour, good name and the image of any innocent and declared innocent (exonerated) citizen, that the communication methods that intend and manage to disrespect and weaken the judgement reached by magistrates of the Country, sole holders of the penal action, representing the citizen by them targeted, in the eyes of the remaining citizens, as a suspect of the practice of crimes (...)” (page 41, 2.2 D)
What the Supreme Court judges declared concerning these matters is exactly this:
. “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 applicants, since such an outcome can never be equated to an assertion of guilt.”
. “Moreover, we are faced with a decision of archivement by the Public Ministry, which is liable to be counteracted through various ways. (...)”
. “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 applicants.
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.”
It can't be stressed enough that it was the McCanns who brought these specific points in their appeal to the Supreme Court, therefore the judges had to address them. The Supreme Court judges decision is totally correct in a legal perspective: the McCanns cannot claim they were declared innocent through the archiving dispatch.
It is quite extraordinary that the claimants do not like the application of the law if it does not suit them and have now embarked in what can be perceived as media pressure and an insulting campaign directed at the Supreme Court judges who have merely addressed the points of their appeal, raised by themselves.
Maybe this was their main intention. To bring those matters into the lawsuit in an attempt to prove to the world they had been cleared. Wrong law action, wrong section of the courts to do that. Perhaps it is also part of a devised strategy to show via the media how they are being treated unfairly by Portugal, to have some sort of grounds to go to the ECHR against the Portuguese state, who knows?
It seems obvious the McCanns are now waging a war on Gonçalo Amaral, on facts, on the Portuguese legislation, on the Portuguese Supreme Court judges, on Portugal itself.
Joana Morais
