Surreal

1. Introduction

Imagine the reader is a manager of a bank branch and one day the reader receives a letter saying:

“To the bank manager, apologise for the disturbance but I feel obliged to inform you that I intend to rob the branch tomorrow morning at 09:30, if that’s not too inconvenient for you. Best regards.”

To the reader's surprise at 09:30 the next morning a well-dressed gentleman approaches the reader and says,

“Good morning, I’m the robber who wrote you letter tha I hope you have received in time, I do have a gun under my coat but don’t want to pull it out just yet because I don’t want to startle your clients needlessly. Is now ok or do you prefer another time? I can always come back later when it's best convenient. I'll only take 5 minutes of your time but certainly don't want to be a nuisance.”

The first reaction is to say this situation would never happen but we ask the reader to abandon logic momentarily and imagine things happening as described.

How would the reader react? What would the reader think?

Please note that the robber really intends to rob the bank. He's simply being polite and trying to find what is your best schedule to be robbed.

It’s all very real and yet all is so senseless that the reader questions its reality. Is it really happening? What is going on? These questions would be popping into the reader's mind. 

A parody? Something surreal? Both?

It was a robbery because there was a robber and he had the intention to rob but all the rest had no similarity with whatever a robbery is supposed to be.

The paradox of being in situation that presents itself as something completely and absurdly different from what one expects it to be. 

That's exactly what we felt when we read the trial’s decision on the McCann v Amaral damages trial in Lisbon disclosed last Tuesday, April 28 2015.

We would like to start by saying how strange we have witnessed how some people, supposedly very familiar with the legal battle(s) between Mr Amaral and the McCanns, insist on calling it a libel trial.

Not a single word of the referred decision speaks of libel or defamation against the McCanns. In fact the judge recognises that the book is factual and the compensation attributed, as we will see, are all about the intent Mr Amaral had when writing it and if he was, or not, legally able to have written it.

Nothing about its content so nothing about libel, defamation or anything similar.

And yet to some, even before proof that it isn’t about libel, libel it continues to be.

And to them it continues to be about libel even after Mr Amaral himself felt the need to clarify that it was not libel.

Nothing can be done when people breathe stubbornness.


2. The defeat

In our post “Winning v Not Losing” we said that the McCanns couldn’t lose and neither could Mr Amaral win.

The result disclosed on Tuesday was very clear and not debatable: in the 1st Instance Court the McCanns won and Mr Amaral lost.

There's no arguing about that and we shouldn't be like the Black Hats who transform all they can into a victory and what they can't they pretend it didn't happen. This was a defeat (not the defeat), let's acknowledge it.

We warned about this possibility.

We warned readers how the 1st Instance Courts in Portugal have the tendency to give at least some reason to the plaintiffs. It’s as if these courts feel obliged to justify they accepted the case in the first case. If the plaintiff has no reason to his argument then why did the court accept the case?

Add to this the characteristic of the Portuguese to be inventive. To be innovative. To show others how smart they are. How they can see things others are unable to see. How they can think outside the box.

These 2 factors made us wary of our own optimism.

But the way the witnesses brought in by Team McCann, how they behaved and what they said, plus the listed proven/not proven facts made us think it would be impossible for any other decision but one favourable to Mr Amaral , meaning we were convinced he wouldn’t lose and the McCanns wouldn't win.

But the impossible is but the possible yet to be achieved and so when we heard the result of the decision going the other way we were not surprised, just sad. What made us angry was the amount that Mr Amaral was sentenced to pay. But about that later.

The judge had found the impossible it seemed.

But about making the impossible possible is that one can drill a hole in the ground from here to the centre of the Earth looking for oil and not find it.

When there’s no oil to be found no oil can be found and it seems that in this case the judge set to herself she had to find oil where oil wasn’t anywhere near. And when invents oil, it can be made to look like oil, even have its texture and smell but it just isn't oil, it's only an invented version of it.


3. Disclosure

Let’s start with the way it was disclosed.

First it was from Portuguese media, then from the British. Both saying the information had come from Isabel Duarte, the McCanns lawyer. Mr Amaral’s lawyer on that day said publicly he hadn’t been notified.

As far as we know he was only notified 24 hours later. Here we would like to highlight the passive attitude taken by the court about this fact because we deem this relevant as we'll mention later in the post.

It’s a fact there was an inequality in terms of notification.

The term being used as in the sense of the parties knowing the content of the decision.

One of the following happened:

- the McCanns were officially notified before Mr Amaral, an unacceptable situation that benefits clearly one of the sides;

- both parties were officially notified at the same time and that means that Mr Amaral’s lawyer was being untruthful, as if Isabel Duarte had the information so would he have it too;

- Isabel Duarte had access to information she shouldn’t have and disclosed it to the press.

In any of the cases, an inequality existed and the court should have acted as its credibility was seriously questioned, either by its own incompetence (failing to notify both) or by Mr Amaral's lawyer not telling the truth or by Isabel Duarte for using leaked information.

In case it was the court's fault, it should have issued a short statement assuming the error and avoid misunderstandings.

In case it was Mr Amaral’s lawyer to blame for the perception od an inequality that didn't exist then it should publicly inform the court notified both parties at the same time and tell Mr Amaral's lawyer to look better in his inbox before giving interviews stating something incorrect.

In case it was Isabel Duarte who had her information from a leaked source the court should have announced it was going to take immediate action about the case.

But the court did absolutely nothing. It accepted as “natural” this inequity between parties on sensitive information that was disseminated publicly and visibly by the various media.

Before Mr Amaral’s lawyer acknowledged being notified a picture of the document was being shown on TVI.

We cannot see Mr Amaral’s lawyer coming out publicly saying he wasn’t notified when he wasn’t. If for no other reason because it served no purpose. To say he lost then or say on the next day would be perfectly irrelevant and a simple waste of time and of credibility.


4. The basis of the decision

From reading the document one could sum up the judges’ decision in saying she found that Mr Amaral should not have written the book because he was due some sort of reservation about its contents as they were under secrecy of justice when he wrote the book and he knew that perfectly well because of his professional involvement in the case.

That reservation, according to the judge, remained in place even when he retired from the PJ and even after information in question had been disclosed publicly.

The consequence of him not respecting this unwritten reservation was thar he was sentenced to have his book banned and to pay 500,000 € to the McCanns, plus interest, plus his share of court costs.

Just reading the 3 above paragraphs one is baffled by the disproportionality between the findings and the sentence.

We consider that in the XXI century the banning of a book, any book, is an act of aggression. The banning of a book before the age of information was done to avoid the access to biased and untrue information against which the readers had no predictable means to find any other that would contradict it.

Today any subject can be easily searched on the internet and the act of buying a book is a voluntary one, so censoring one has little or nothing to do with content (it can be found elsewhere) but about sending a threatening message to its author and to its possible readers.

A shameful and condemnable attitude on all counts in this age of the internet. The Maddie case is the perfect example of how ridiculous it is to try to prevent people from knowing what is out there to know and easily accessible to all.

We see only one reason to ban a book: state security. When the disclosure of classified information that may result in the risk of loss of human life. Information that for that reason alone cannot and should not be accessed by simply anyone.

If the content of a book is illegal, say the disclosure of classified information that may result in the risk of loss of human life or on how to traffic human beings, then it’s not about banning but about legality.

But is the content of Mr Amaral’s book illegal?

The judge seems, from what we interpret from her words, to think that because book was written while its contents were under the secrecy of justice then, yes, it’s illegal.

Let’s first deal with what is classified information. It is a mechanism to protect information from being known outside those who need to know it. A very simple and straightforward concept.

The secrecy of justice classifies the information making it reserved for only those involved in the investigation. Its creation was not to protect the sensitivity of the information per se (for that there are other mechanisms in place) but to protect the sanctity of the investigation. To ensure that the integrity of the judicial information is maintained.

Once the investigation ends, and because it has ended, that information no longer needs protection as its no longer possible to suffer alterations and so the secrecy of justice of its contents ends with it.

The judge says that because of his profession Mr Amaral should have known that he couldn’t write about those facts when he did because, as we said, they were classified during that time. We say it’s exactly the opposite. We say that the fact that because of Mr Amaral's profession it allowed him to know better than anyone else that the facts he was writing about (and not disclosing) would stop being under secrecy of justice once subject to a dispatch that would put an official stop to the investigation.

Investigations in Portugal have schedules and deadlines so he was in the best position, due to his profession, that it would come any day soon, as it did come on July 21 2008.

Plus, having been the coordinator of the investigation, he would be the best person in the world to know about the information he was writing about, which would be open to the public and which would remain classified.

As we know pages of the PJ Files have been withdrawn and photos altered to protect people. That is the kind of information that continues to remain classified even after the investigation ends. Mr Amaral mentions none in his book. Nothing in his book is confidential after the archiving dispatch. Nothing.

The word  “CONFIDENCIAL” in red on the cover of the book is but a marketing ploy. Who in their right minds places that word on a book with that kind of content? And only now would discover something that Team McCann didn't notice all these years? Because if there was one single word of classified information in that bool we're certain it would have been brough to light by them during the book banning trial that preceded this one.

The only illegality, if one can call it that, the book contains is Mr Amaral’s confession that he didn’t do anything as a policeman about the poachers he heard shooting on that Easter Sunday of 2008.

It is not physically possible to write a book in 2 or 3 days, says the judge, so when writing it Mr Amaral knew he was committing an illegal act.

Is the court ruling on what Mr Amaral can do or not do in his private life, in the privacy of his home and involving only himself? If it is, then the court is not respecting basic individual rights guaranteed by the constitution of the country.

Where is the law that stops one from writing the most sensitive classified information on piece of paper and then destroying it? Classification has to do with avoiding the disclosure information and not about the information itself.

People who deal with top-secret classified information take it with them in their brain. Is a scientist working on a classified project who has an idea at home and jots it down so he’ll remember it the next day committing an illegality? It’s his responsibility to protect the classification of that information, for example in the way he jots it down, and his professional background provides him with the skillset to do just that.

And where is the law that prohibits a person writing about a subject that person has intervened directly in and knows from his profession that one day will no longer be classified as long as he doesn't disclose it?

Let us give you a simple example to demonstrate what we mean. Prohibition in the United States prohibited “the manufacture, storage in barrels, bottles, transportation and sale of alcohol including alcoholic beverages”. Any of it was an illegal thing to do.

However, in December 5 1933 it was repealed.

On December 6 it was legal to drink. And people drank alcoholic beverages that day. Openly and publicly.

However any and all alcoholic beverages drank that day were produced when its production was illegal. Was anyone prosecuted for that? Did it cross anyone’s mind to prosecute? Did people wait for the first bottle of wine to be made from grapes picked only after that day to consume, legally, alcohol?

No, because the time of disclosure of a fact is of the essence.

When those bottles were opened their content was legal. When Mr Amaral’s book was published its content was no longer under secrecy of justice so it was legal to disclose the information. When was it written had stopped to matter the moment the dispatch was signed. The moment in which the secrecy of justice on the facts of that particular investigation was “repealed”.

And on this subject, why wasn’t Kate condemned to pay a similar amount? Her diary was written when the information it contained was under the secrecy of justice.

We know she knew all about that that because they did a lot of complaining about how they couldn’t express themselves because of said secrecy.

Does it cross anyone’s mind to prosecute Kate for writing her diary? No, it doesn't. Then why prosecute Mr Amaral ? Both Kate and Mr Amaral knew information was under secrecy of justice the moment they were writing it. With a difference, with Kate it was publicly known that she was doing it and with Mr Amaral the public was not aware.

Also, is Mr Amaral committing an illegality whenever he answers publicly, as he has frequently, questions put to him about the case since then? Apparently he is. Apparently he should answer always “sorry, I cannot comment on the case, you see, I was the investigator so I cannot utter a word about it for the rest of my life”.

And what about all other former police officers who comment on TV morning shows about cases they have experineced? Should they now be silenced? They should if the law is to be applied to all and not to just one person.


5. Defamation

As we have said, there is no reference to libel in the text of the decision. Only Mr Amaral ’s intent to hurt. We will speak about intent later.

To defame is to allege something false about another and as the judge recognised, the book is based on fact. Fact does not libel. It may hurt but it isn’t defamatory. Fact is fact.

As we said in our post “No longer libel, so stop calling it libel” the trial was not about defamation.

The trial was to ascertain if the book had damaged the McCanns and/or the search for Madeleine. If it had, then calculate how much Mr Amaral was responsible for that and make him accountable for it.

The judge states that the book in no way hindered the search for Maddie and the damages suffered by the McCanns were the “expected”.

It seems to us that 500,000 € is a rather exaggerated amount of money to pay for expected damages and no influence on the disgraceful spectacle put on to search for a girl many know is dead and has been dead since May 3 2007.


6. Intent

The judge sums up her reasoning in the question she puts “how to solve the conflict that exists in the present case between the rights of the plaintiffs Kate and Gerald McCann to their good name and reputation and the right of the defendant Gonçalo Amaral to his opinion as emanation of the freedom of speech that assists him?”

We will speak later about how this question is even put but want to highlight at this point that the judge, per her own words, sees 2 vectors in this issue: the right to a good name v the right to express an opinion.

We want to highlight this because although does speak here of these 2 vectors, from this point onwards she only focuses on 1 of them: the right of the McCanns.

The judge, as she should, no longer addresses the right Amaral has to express his opinion.

The judge comes to the conclusion Mr Amaral’s freedom of speech was diminished because of his duty to be reserved about the information for having been the criminal investigator and even retired he still had such duty.

From there onwards she decides that in the case where there are these two concurring rights, the McCann’s one of good name and honour should prevail and the other one not even considered.

She dismissed the other side, that Mr Amaral’s good name and honour had also been abused, which she should have pondered as part of her professional obligation to be equitable, especially when she relied on jurisprudence to guide her through the prevalence of one of the concurring rights, especially when reminding others of their professional duties.

We find it very strange for her to base her decision on the person of Mr Amaral, or in the legality of his writing and of his intentions after showing during the court sessions that she had absolutely no any intention to summon him to the stand. She even refused his request to testify.

Didn't she deprive the man the right to defend himself? If he was to be such a pivotal character in her decision shouldn’t he be given that chance? Can the court simply decide on a man's intention without giving him the chance to explain himself?

We don't think it can but apparently it did.

But what is pivotal about Mr Amaral and his intentions is this phrase from the judge “the temporal continuity shows well the intention to call for the contradictory, in the public square, of the closing the investigation, confronting it with the thesis of the previous line of investigation, told as truthful by a former responsible for the same investigation”.

The judge is clearly saying that what Mr Amaral wanted was to say publicly that the archival dispatch was wrong.

Can the reader see the importance of this paragraph?

This is the judge saying very clearly and very explicitly, McCanns please step aside this has nothing to do with you, this is between the Public Ministry, who wrote up the archiving dispatch and this gentleman here who is claiming that they don’t know how to do their job, so let me roll up my sleeves and deal with him accordingly.

If Mr Amaral defamed anyone it was the Portuguese state. If Mr Amaral was calling anyone a liar, it was the Portuguese state. All that is said about the McCanns in his book is factual, so said the judge, so the question on whether the book may imply false allegations is only about the Public Ministry.

So if Mr Amaral had to pay any compensation it would have to be, to go according to her own words, to the Portuguese state.

Apparently the McCanns just happened to be in the right place at the right time when the judge decided to make Mr Amaral pay 500,000 € for alleged offenses against the state. Lucky people those McCanns.

However Isabel Duarte represented the McCanns and not the Portuguese state.


7. Banning

Was it only us the banning of the book caught by surprise? Not the fact that it was banned but that it was even on the table for decision?

When ID was interviewed outside the court on the first day she stressed that it was all about Mr Amaral paying for the damages he caused to the McCann family and to the search for Madeleine

During the court sessions we witnessed, not a single reference to any sort of banning or of any request for that.

However we did witness that the judge did not allow any fact in the book to be discussed in court. That means her decision to ban can only be based on the argument of the illegality of the content, as it was under secrecy of justice when written but no longer when the book published, and not of the content itself.

But irrelevant of reason as to why she decided to ban the book she simply she shouldn’t have brought the issue into her area of responsibility. Why?

We go back to the judge’s words already mentioned in this post when she asks “how to solve the conflict that exists in the present case between the rights of the plaintiffs Kate and Gerald McCann to their good name and reputation and the right of the defendant Gonçalo Amaral to his opinion as emanation of the freedom of speech that assists him?”.

We tell her that all she had to do was to look up the Appeals Court decision on that exact same subject and to look at the Supreme Court’s decision to uphold what the Appeals Court had decided.

A higher Portuguese court than hers had already pronounced a decision on the subject. Not about a similar one but about that one specifically. About that exact same question involving the exact same issue and the exact same people.

Maybe she should have searched for these decisions when she went out searching for jurisprudence because all she decided had been decided before.

Now it’s up to the Appeals Court to decide on whether they, the Appeals Court, knew what it was doing when they decided the way they did about the conflict of rights in question or if it will accept the decision of a lower court contradicting theirs.

We do question the legality of a decision of a lower court go against a higher court but will, obviously leave it to the courts to decide.

Independent of what happens next on this issue next, one thing is certain, Portugal is looking really bad in this. This vexatious dance of banning-unbanning-and-banning-again of a book in the second decade of the XXIst century is very prejudicial to the country’s image and to that of the credibility of its justice system.


8. Legality

Let us clarify that we think the decision is legal and legitimate. However it is in our opinion “wounded with an irremediable irregularity” as the Portuguese say, which for us constitutes an illegality because it goes against the country’s constitution.

It’s a basic principle of law that no one can be judged twice on the same matter.

The judge by banning the book has converted this trial about something that has already been subject to previous judgement.

It stopped being about possible damages but it became about the book and this issue and all its arguments for and against, have already been submitted, or they should have, to the Portuguese legal system all the way up to the Supreme Court.


9. Amount

The 500,000 € sentence is an amount that offends the Portuguese. To those arguing that the McCanns didn’t win because they only got half of what they asked, let us be very clear that the if the amount is to be the measure of success then the McCanns didn’t just simply win but won big time. A humongous victory, in fact.

In Portugal for the loss of life or permanent disability the courts usually hand out sentences of tens of thousands, usually between 30,000 € and 50,000 €. Talking about death or permanent disability.

In case of libel, even involving high ranked politicians we have no memory of an amount bigger than 10,000 €.

So, the McCanns got, in our opinion, about 50 times more than the expected in case they won, which they did. If that is not a clear victory we don’t know what is.

But what is the justification for such an unusual amount? This is what the judge has to say “having these vectors present it’s thought adequate and proportionate the compensation petitioned by the plaintiffs, which is of Euro 250.000,00.”

Which vectors are those? The best we can understand are those we have referred, right to good name v freedom of speech which resulted in a decision extracted out of a “legal mosaic” (judge’s words) so not exactly simple or straightforward and much less is objective.

We fail to see where the substantiation is for both adequateness and proportionality of the amount decided nor how this value was calculated. Was it just because they asked for that amount? Then the McCanns must be hitting themselves for not having asked for more. Why not ask a million each and whatever for each of the twins? Why not even more than that?

And where in all her decision taking is there any sort of quantification of damage? And what damage?

The judge speaks only about the offenses to the good name. But those offenses, although existing, shouldn't be considered as the Mr Amaral's right to free speech prevailed so has the Appeals Court decided. So we cannot see any damages for which Mr Amaral should be accountable for.

Could it be because of the sanctity of the judicial information that according to the judge Mr Amaral went against?

If that is the case, then to condemn a man to pay 500,000 € because of it means that the judge really values such sanctity.

But then where is her concern for this sanctity of judicial information when confronted with blatant irregularities in the disclosure of her decision? Is that sanctity important or isn't it?


10. Conclusion

This doesn’t please anyone. There is one unwritten sentence that was effective as of that day: the saga will go on.

The suffering of all involved, directly or indirectly will continue.

We’re in May, so we’re not anticipating a decision from the Appeals Court before next autumn.

We hope that by now the reader understands fully the analogy of the bank robber.

When we first read the decision we were bewildered.

Were we really reading what we were reading? Or what we were reading was it really there? It looks like a decision but where’s the damage? Why such an absurd amount? Why are we reading Mr Amaral’s book again? And the conflicting rights, wasn’t this something done and over with?

All seemed surreal. All seems surreal still. All is, frankly, very surreal.