1 – In the sequence of the complaint presented by Vitor Manuel Rita da Fonseca Lima, Pedro de Castro Santos Van Dunem, Fernando da Piedade Dias dos Santos and António José Maria, which have been appointed as assistants – giving origin to the enquiry n. 9954/96.9TD.LSB – against Carlos Alberto Barreto Ramos Dias and Tiago Nuno Salazar Garcia de Sousa Gomes a particular accusation has been drawn against the latter accusing Tiago Salazar of a crime of slander committed by means of the mass media, according to the articles 180th and 183rd, n. 2 of the Penal Code and the defendant Carlos Dias of the crime of slander “practised by means and circumstances which make its disclosure easier” foreseen and punished by the dispositions of the above mentioned articles 180th and 183rd being, in what concerns this disposition, with a reference to its n. 1.
The facts of this accusation are, in the essential, those that follow:
-The assistants are public figures of the State and in the society of Angola, being the first the Secretary of the President of the Democratic Republic of Angola for the Foreign Affairs, having the second occupied the positions of State Minister for the Productive Sphere, Minister of the Energy and Fuels and Foreign Affairs Minister, the third one has had the positions of Vice-Minister for the State Safety and Vice-Minister of the Interior and the fourth the position of Secretary of the President of the Democratic Republic of Angola for the Defence and Safety Problems, also being a General of the Angola Armed Forces.
– They are all close collaborators of the President of the Democratic Republic of Angola and well known both nationally and internationally for their performance in the political and State missions in different countries in Europe, Africa, Latin America and USA.
– In the sequence of the “civil war which has opposed the Angola governmental institutions against Unita” different lobbies with expression in some mass media organs have been trying to discredit the governmental action, preventing the stability, degrading the governors image.
– On its edition from December the 5th 1995, days before the trip of the President of the Democratic Republic of Angola to the USA, the weekly newspaper “O Diabo” has published on the front page the title “Portuguesa Assassinada em Luanda” (Portuguese Murdered in Luanda); They have raped her and murdered her; Eyewitness accuses the advisers of Eduardo dos Santos; the Angola Embassy says that it is a “plot against the nomenclature”; Mário Soares may rise the problem when he visits Angola”.
– On page 22 of the same edition it could be well read: “Angola Embassy says that it is a plot against the direction of the MPLA”.
– Underneath with bold letters was written: “Crime in Luanda” followed by the sub-title: February the 28th 1991. Girl from Angola raped and murdered in Luanda. She worked for a Portuguese businessman to whom the Government of Cabinda still owes payments for the rendering of services. The Press avoids making large descriptions. Articles in the newspaper “Jornal de Angola” refer to the crime. Superficially, without making references. Months passed and no lawyer accepts to take the matter in his hands. Another isolated racist crime or the death sentence for the impunity of the Government of the MPLA?”
– Next, in the news are described the insults, beating, rape, murder and theft actions against Carolina Francisco, companion of Carlos Dias, who, according to what is said, may have been committed by the assistant Vitor Lima and others, being the murder committed on demand of the remaining assistants.
– The version presented is said to have been described by a eyewitness, Joana Paula, the girlfriend of the assistant Vitor Lima who, on the occasion, would accompany him and by the defendant Carlos Dias, in a letter that the latter has written and put into circulation by means of copies.
– Tiago Salazar has written himself, a journalist of that weekly newspaper the article and the respective titles himself, a journalist of that weekly newspaper.
Meanwhile, the defendant Carlos Dias required the finding of facts even before the Department of Justice had taken any position on the matter.
In that demand he says, in brief:
– That he didn’t know the defendant Tiago Salazar and that the contact and posterior publication of the news occurred in the sequence of a letter written by him to different personalities.
– In that letter, were described the facts which were part of the news, in the essential, facts that the defendant says to have found circumstantially by means of diligences that he made on his own account, what he was compelled to do due to the non operativity of the investigations of the police authorities of Angola.
– Before writing the letter, which he has spread and which was the base for the news, he tried to inform the authorities of Angola, through the adequate channels, namely his lawyers, of the facts he had discovered.
He acted convinced of the veracity of the facts and in good faith in view of the elements he had collected.
He has gathered a wide set of documents from which stand out:
– A copy of the letter that was in the origin of the news, dated from September the 15th 1995, addressed to different individualities;
– A copy of the letter addressed to the Minister for the Domestic Affairs of Angola dated from 91.3.28;
– A copy of the letter addressed by the defendant’s lawyer, in Luanda, to the Vice-Minister for the Domestic Affairs and General Commander of the Police, dated from 92.1.31;
– A copy of the letter addressed to the President of the Democratic Republic of Angola, dated from 93.3.29;
– A copy of the publications that the defendant published in the press asking for any information on the murder of Carolina Francisco;
– A copy of information written, legalised, dated from September 1993, given by Fernando Neto, who presents himself as ex-employee of the Ministry for the Domestic Affairs of Angola, and by Francisca Costa, his wife and sister of Joana Paulo, concerning the authorship of the murder, identification of the principals and reasons for the action;
– A copy of the statements, legalised, dated from November 1993, rendered by Joana Domingos Paulo who, assuming herself as a eyewitness of the facts, describes with detail the events that ended up, according to what she says, with the rape and murder of Carolina Francisco, also signed by Francisca Costa and Fernando Neto.
– A copy of the letter of the defendant’s lawyer in Brazil, dated from 93.11.25, addressed to the President of the Democratic Republic of Angola, offering his services for any contacts on the matter;
– A copy of the letter addressed by the defendant’s lawyer in South Africa, dated from 94.4.19, addressed to António Van-Dunem, judicial assistant of the President of the Democratic Republic of Angola and offering is services to discuss the matter with him;
– A copy of the letter addressed by António Van-Dunem, on the same date, to the defendant’s lawyer in South Africa, replying to the above mentioned, informing that he has to return to Luanda but that he is at their service to discuss the matter on another time;
– A copy of a letter of the defendant’s lawyer in Brazil to the General Council of Angola in that country, dated from 94.6.3, asking if he could arrange, through him, a meeting between the defendant and the President of the Democratic Republic of Angola on the occasion of his visit to Portugal.
– A copy of a news from the “Jornal de Angola” mentioning a communication of the Domestic Affairs Minister, with the title “Police refutes rumours about the death of Carolina Silva”.
– A copy of a letter from the agent of the defendant, Francisco Teixeira da Mota, dated from 94.9.23, addressed to the Domestic Affairs Minister of Angola, referring to the above mentioned communication and to what is said concerning the fact that the authorities are “receptive to any information that may contribute to the solving of the crime” and the defendant’s attitude in “intending along the years and through the contacts he had to contribute for the solving of the same case”; the deliverance to the already above mentioned António Van-Dunem, in 94.6.26, of the elements that were in the hands of the defendant, including the statement of an eyewitness; the enquiry proposal, through the Portuguese justice, of the people whose statements could eventually contribute for the solving of the crime;
– A copy of a letter of Francisco Teixeira da Mota, on the same date, to the President of the Democratic Republic of Angola, enclosing a copy of the above mentioned letter;
– A copy of the letter of Francisco Teixeira da Mota to the Portuguese Foreign Affairs Minister exposing the situation and asking for a meeting in order to debate the possibility of the “witnesses” here resident being heard in Portugal.
It was also enclosed the statement of Joana Paulo made during the enquiry n. 12645/95.4TD.LSB of the 12th section of the DIAP and two videotapes, one with the statement which, according to the respective demand, is that of Joana Paulo, made anonymously to TVI, and another with the statement of the same Joana Paulo and of Francisca da Costa to SIC, both checked (cf. auto on pages 291).
It was also enclosed a written notice from the High Commissioner Cabinet for the Human Rights, of the United Nations, addressed to the defendant Carlos Dias, informing him of the content of the decision of 98.3.20, of the Commission for the Human Rights, in the sequence of the complain presented by him in March 1996, concerning the murder of Carolina Francisco.
After the regulating argument took place it was pronounced the sentence of non-indictment of both the defendants.
In what concerns Carlos Dias, it was understood, in view of the proof presented, that it was legitimate for him to consider as reliable the elements that he gathered concerning the death of Carolina Francisco therefore is behaviour is judged under what is decreed in numbers 2 and 4 of the article 180th of the Penal Code.
In what concerns the defendant Tiago Salazar Gomes, non petitioner of the regulation, in accordance with the Entry 1/97 the effects of this phase were widen in what concerns him and, as a consequence it was understood that in view of the elements that he had, he had real foundation to accept the facts as being true, thus his conduct was enclosed under the disposition of the article 180th, number 2, paragraphs a) and b) of the Penal Code.
Finally, it was stressed that the accusation made by the agents didn’t had sufficient elements in order to obtain an order of indictment by lack allegation of volition element.
The agents have appealed from this order, asking for the revocation of the respondent order and for the indictment of the defendants for the crimes of which they were accused.
Under the term of their motivation, they formulate 25 long and repeated conclusions, most of it constituting a reproduction of the allegation, where they affirm that the content of the news contains facts that are nothing but lies; they evoke a partial treatment connected to the existence of the conflict UNITA/MPLA which would be in the base of the news used as the “combat technique”; they mention that the defendant Tiago Salazar Gomes should have investigate more seriously (underline added) the facts and that the defendant Carlos Dias is influenced either by political purposes or viewing the claim for the credits that he says he has over the State of Angola; they affirm that the imputations made launch serious suspicions upon himself hurting his honour and consideration; they insist on the non-existence of good faith on both defendants side.
The Judge from the Department of Justice has presented counter-motivation where the she affirms as a conclusion that the Instruction Judge has made a judicious analysis of the proof and that the appealed decision doesn’t deserve to be censured.
The defendant Carlos Dias counter-motivated the appeal concluding that all the diligences he developed are a definite proof of his good faith, in the conviction he has created of everything he describes has being true. He asks for the confirmation of the appealed order.
The defendant Tiago Salazar Gomes on long conclusions defends that the news was based on information given by a man that he considered to be honest and idoneous, in a desperate situation, and that in this particular situation he had two options: to publish or to be still. He asks for the confirmation of the appealed order.
In this Court, the Assistant of the District Attorney has issued a judicious opinion where he sustains that the appeal does not deserve to be granted.
The visa were gathered,
4. – Admitting, together with Professor Costa Andrade, honoured by the judicial property, it has in a statutory comprehension a structure marked by the dynamism and plasticity and that the honour emerges as a variable sense, content and density depending on the collective representations dominant and historically contingent, just as it ends up by seeing its extension and consistency dependent on the conduct of the bearer (Liberdade de Imprensa e Inviolabilidade Pessoal, Coimbra Editora, 1996, page 83) it must be acknowledged, even then, that the situation under analysis, in what concerns the facts contained in the news of which the agents are accused of, and which have motivated the complaint is far from constituting a confinement or frontier case. On the contrary. To include in a news that someone has raped and murdered and the another one was the principal of that conduct, and with the inclusion of the names is, clearly, a situation that assaults the honour of any person, deserving to be considered as such.
Considering this and, it is believed, without reasons for any discussion whatsoever, that what we must put into analysis is, after all, if there is the cause for justification in what concerns the number 2 of the article 180th of the Civil Code and according to which the honour and consideration offensive conduct is not liable to be punished when, accumulativelly, a) – the imputation was made in order to execute lawful interests and b) – so that the agent may prove the truthfulness in the same imputation or if there is any other real foundation, in good faith, in order to consider it as being truthful.
In what concerns the defendant Carlos Dias, first, it is thought that his attitude in writing the letter with its content and which was the origin of the news and by broadly divulging it and, as he recognises, even more than the news itself, has acted in order to take into effect some legitimised interests. It mustn’t be forgotten that the question was the rape and murder of his companion and partner and that the defendant has been developing, since 1991, as he thought to have proved abundantly (according to the above mentioned documentation, which he has enclosed in the petition for the opening of the procedure), an investigation activity on his own account also accompanied by intensive pressure activity with the police and political authorities of Angola, without any visible results whatsoever. It was such that the complaint he presented to the Human Rights Commission of the United Nations was considered, emphasising in the respective decision that there wasn’t any answer whatsoever not even to the jurisdiction of the mentioned Commission on the State of Angola side.
On the contrary, against this abundant proof, the agents haven’t presented a single proof of what they strongly affirmed that the defendant was driven only by political or economic interests and that his mains motivation was the discredit of the members of the government of Angola, being his conduct only a “combat technique” (sic) taken into effect or at the service of “lobbies” from UNITA. Therefore, a public interest (universal) was being questioned in what concerned the performance of justice and, also adding, a personal, private, interest, of an unequivocal relevance.
Now, considering that the existence of real and good faith foundation of his performance, it must be considered that “what is decisive is not the subjective good faith but the good faith founded in what concerns a truth which would also be admitted by a person of a rightful conscience and reasonable thought placed in the same situation” (Roeder, cit. by Costa Andrade, ob. cit. page 357).
Then, in this case, what we have is a situation where the police investigation is non-conclusive, as it is shown in the communication published in September 1994, in the Jornal de Angola, by the Domestic Affairs Minister of Angola, and where the defendant ends up by collecting proves which could not be left unconsidered, in any situation of respect for the “State of Justice”, what the defendant proves to have tried. In what concerns the essential of the statements of the witnesses, being one of them ascertained as an eyewitness, there is nothing there which could give rise to an exclusion such as the agents have performed. In this respect, we must even be real clear. The statement of the said eyewitness, and it is enough to mention this one, if it wasn’t significantly questioned, namely in what concerns her presence, in any other enquiry performed in Portugal, would no doubt give rise to an accusation.
Therefore, in view of a situation that is being dragged for many years now, where the defendant is confronted with a situation that he (with justification) evaluates as of autism, his attitude, after considering the matters in the present case, did not disrespect in any way the idoneousness, adequacy, need or proportionality demands.
In what concerns the defendant Tiago Gomes, it must be stressed that, in the first place, the news, on the deontological point of view, deserves at least to be seriously repaired, in order not to say that it is regretful. From the trick where he pretended to have interviewed Joana Paulo (“She explained us what she saw” – 1st column, lines 16-17) when, in reality, he used the written statement of the same which was given to him by Carlos Dias (according to his own declarations on pages 68/v-69) abusing of the readers good faith, considering the passage in the front page where a reference is made to a Portuguese that becomes native of Angola along the news or even by means of considerations and incidental bad taste and dubious remarks and with no opportunity whatsoever with a sensationalist style and allegedly playful, totally inadequate comparing with the foundation of the news and with the rigor and objectivity of the information, even with errors in Portuguese (“estancou a viatura” – 2nd column; it isn’t “estancou” but “estacou”! “Estancar” is to stop a liquid to flow) a lot may and must be criticised.
However, his conduct, on the criminal point of view, must be evaluated also considering the matters in this particular case and determining as a consequence which may be the “valuable prevalence” to be established: if in favour of the freedom of press or the judicial-criminal matters of the agents, namely those concerning their honour. According to Jakobs quoted by Costa Andrade (ob. quoted page 179) there is no judicial matter which may enjoy from an absolute penal tutelage, and neither the society nor the law are considered to be a jurisdiction simply voted to the preservation and amplification of the judicial matters. What does the Assistant Public Attorney, in his opinion, based on other authors opinion also stress. Therefore, after placing the legislator, on the first line, and also the law enforcement agent “on a situation of terrible paradox: it can only honour his duty of protection the fundamental rights, by sacrificing the duty of defence against aggressions vindicated by other fundamental rights” (ob. quota. pages 180). Thus the legislative options and the law enforcement can not forget that “the community life – and there is no personal life without a life in community – is fundamentally based on communication. Many times also on communication about the others” (ob. quoted page 185). Justifying a “step back on the protective intervention of the penal code” (…) when there are judicial matters with a personal character in collision and “interests that also count on the approval of the judicial community” (ob. and loc. quotation).
On this specific case, it seems that there isn’t any doubt that the purpose of the news aims the “continuity of a reasonable interest” namely that of contributing for the clearing up and diffusion of a situation duly justified as being a strange one and that is based upon facts of extreme gravity which ever be the perspective considered.
Again it is stressed that, confronted with the elements which are considered to be truthful given by the defendant Carlos Dias, the defendant Tiago Gomes has accepted them as being plausible, sensible and pertinent. He mentions (ref. pages 68/v-69) that contacted with different representative authorities and organisations from the State of Angola like the Embassy of Angola, the Ministry of Justice of Angola, the Judicial Police of Angola and the Delegation of UNITA in Lisbon (a party from Angola with representation on the Parliament) and tried to contact with the agent Vitor Lima who, says, has refused to give any statements to him.
Thus, it is not put into the question the fact that the defendant has disrespected the most significant rules of the journalists leges artis, something that even the agents do not allege in an unmistakable way, only ascertaining, without rendering it concrete, that the defendant should have investigated more seriously. Being certain that “the duty of proving which impended on him can be analysed within a set of demands which are quite apart from those to which a verdict of a court must satisfy” (ob. quotation page 361).
Therefore, in view of the silence barrier (to which the lack of answer gives a greater likelihood even to the Human Rights Commission of the United Nations) the option for the publication, (although with the reservations to its style and content which were underlined) appears as justified and based due to the fact already mentioned as a serious fundament to repute the facts, in good faith, as being the truth.
So, it seems to be pertinent the conclusion of the indictment order according to which if the defendants should be submitted to trial it would be most likely that no penalty should be applied.
5. – For what has been exposed it is decided to judge as dismissed the appeals and, as a consequence, to confirm the appealed decision.
Each of the appellants shall have to pay a 3 UC’s of law tax.