|
Page 01 |
|
Judgement of
Lisbon Court
of Appeal on
request
1454/09 -
19/04/2016 |
PAGE ONE
Kate, Gerald, Madeleine, Sean and Amelie McCann ― the last
three
minors
represented
by the
first
claimants,
their
parents
― filed,
against
Gonçalo
Amaral,
the
publisher
Guerra e
Paz,
the
audiovisual
company
Valentim
de
Carvalho
and TVI,
legal
actions
in the
ordinary
form,
subsequently
attached
to
Lisbon
1st
Civil
Chamber,
demanding
the
condemnation
of the
first
defendant
to pay
the
claimants
the total amount of €1.200.000, plus interest at the legal rate
since
the
summons,
as
compensation
for
moral
damages
arising
from the
publication
by the
first
defendant,
in book
and DVD,
of his
version
of the
facts
related
to the
disappearance
of the
minor
MMC,
third
claimant,
and the
prohibition
for
sale,
publication
or
disclosure
by all
defendants,
book and
DVD in
question.
All defendants challenged, rejecting the responsibility
imputed
to them
and
concluding
that the
action
was
inadmissible.
The sentence uttered following the judgement held that the
action
was
admissible
in part,
sentencing
the
first
defendant
to pay
to each
of the
first
two
claimants
the
amount
of
€250.000,
plus
legal
interest,
and
prohibiting
the
first
three defendants to proceed with existing sales and any
new
editions
of the
book and
DVD as
well as
transferring
the
associated
copyrights,
absolving
the
defendants
of other
queries
of the
claimants
and the
fourth
defendant
of all
queries.
Dissatisfied, the three defendants made an appeal of which
the
allegations
conclude
in the
following
formulation:
Allegations
of now
appellant
Gonçalo
Amaral
- The book, documentary and interview involved in the autos
have as
main
motivation
the
defence
of
Gonçalo
Amaral's
personal
and
professional
honour.
- The writing and publication of the book, as the documentary
and the
interview
mentioned,
were
carried
out
under
rights
constitutionally
guaranteed
by the
ECHR (European
Convention
on Human
Rights)
and the
Portuguese
Republic
Constitution,
accurately
in
articles
37
(1) and
38
(2)
.
- These rights can in no way be ousted by invoking a
special
reserve
requirement
affecting
the
appellant
on the
ground
that he
was
inspector
of the
judicial
police,
as it
appears
in the
first
instance
decision.
- The respective contents (book, DVD, interview) do not
offend
any of
the
claimants'
fundamental
rights,
. neither their privacy, such as articles 80
(3) and
81
(4) of the CC (Civil Code) define it and describe its
effects,
insofar
as they
themselves
voluntarily
limited
/
alienated
such
right by
multiplying
interviews
and
interventions
in the
media
organs.
. nor, in the same way, their image and
reputation,
as they
themselves
placed
the
matter
in the
public
area and
gave it
a
worldwide
celebrity,
opening
the
doors to
all
opinions,
even
opposing
views.
.
nor,
furthermore,
all the
guarantees
of a
criminal
procedure,
namely a
fair
investigation
and the
right to
liberty
and
safety
(5),
as the
respective
contents
of the
book,
documentary
and
interview
describe
the
facts
included
in the
investigation.
- These facts, moreover, were made
available
to the
general
public
by the
Public
Prosecutor,
who
ordered
the
making
of a
digital
copy of
the
police
investigation
files,
except
for
documents
that
cannot
be
turned
over to
the
public,
and the
delivery
of a
copy to
those
who had
requested
it, as
journalists.
- The fact that the content of the digital copy was
disclosed
on the
Web,
making
it
universally
the
subject
of
comment
and
public
discussions,
must be
taken
into
account.
- Therefore no reserve duty can be imposed on the defendant
about
facts
that
have
been
disclosed
and made
public,
particularly
the
whole
investigation
process.
|
|
|
|
Page 02 |
PAGE TWO
- Once the duty of reserve is non-existent, freedom
of
expression
of the
defendant
comes
first
and
prevails
over the
rights
asserted
by the
claimants,
as the
sentence
has
observed
before
introducing
the
unusual
duty of
reserve.
- The
act of
the
defendant
in
question
is not
unlawful
under
the
terms
and
effects
of
article
483 of
the CC (Portuguese
Civil
Code)
(6),
and he
can not
be
ordered
to pay
any
compensation
whatsoever,
and must
be
completely
absolved
of the
request
made by
the
claimants.
- No
less
should
he be
prohibited
to
publish,
sell and
disclose
the book
and the
DVD
mentioned.
- It
should
be noted
that, in
the
words of
the same
standard,
besides
the
absence
of
illicit
items,
would
have to
found
the
civil
compensation
request,
provide
evidence
of a
causal
link
between
the
defendant's
conduct
and
damage
allegedly
suffered
by the
claimants,
which,
if we
refer to
the
answers
given in
articles
11 to 16
of the
instruction's
basis,
as well
as to
respective
motivations,
is
totally
excluded.
It has
still to
be taken
into
account
the fact
that the
statements
contained
in these
articles
are more
like
conclusions
and not
like
facts to
be
included
in the
basic
education.
- These
conclusions
are not
based on
any
factual
element
either
present
in the
instruction's
basis or
reported
in the
claimants'
exposure.
- If
however,
reductio
ad
absurdum,
one
would
have
considered
as such
(effective
damages
and
deserving
protection,
caused
somehow
by the
book and
the DVD)
the
alleged
contents
of
articles
13 to 15
of the
instruction's
basis -
nothing
else was
presented
as
proven
damage –
one
would
say they
are not
true.
- To
appreciate
this
falsehood,
and to
the
extent
that the
appellant
here (GA)
meant
that
such
"facts"
should
be
overturned,
it will
be
enough
to
re-evaluate
the
recorded
testimonies
of
Michael
Terence
Wright,
Alan
Robert
Pike and
Angus
Keith
McBride.
- These
statements
show
that,
before
the
publication
of the
book and
documentary
in
question
and in
the
claimants'
full
knowledge,
theories
and
arguments
identical
to those
of the
defendant
circulated
publicly,
mainly
on the
Web.
-
Therefore,
and
whilst
were
true the
feelings
given as
proven
in the
factual
matter
here at
stake,
whether
of rage,
despair,
anxiety,
unrest
or
worry,
particularly
concerning
what the
(MC)
children
might be
led to
believe,
the
truth is
that the
reason
for all
this
existed
before
any
intervention
on the
part of
the
defendant,
here
appellant.
- The
same can
be said
with
regard
to
insomnia
and lack
of
appetite.
- The
Court
must
take
into
account
the fact
that
those
witnesses
are
close to
the
claimants
(family
member,
psychologist
and
lawyer)
and
that,
notoriously,
they
always
end up
their
statements
by
trying
to
underestimate
the
theses
anterior
to the
book and
documentary
and, of
course,
to
overemphasize
the
impact
of the
latter
on the
mindset
of the
claimants.
-
Particularly
in the
case of
the
witness
M.T.
Wright,
who was
assigned
to
support
the
claimants
after
the
disappearance
of the
minor
MMC, in
the
promotion
of
awareness
campaigns
and
monitoring
of
certain
sites
and
information
conveyed
by the
web.
- The
witness
who, as
part of
the
summary
and
critical
analysis
of key
witness
testimony
was
discredited
by the
Court
(and
rightly
so) for
consulting
handwritten
notes
including,
in order
and in
an
almost
perfect
chronological
sequence,
topical
replies
to
questions
put to
him
during
the
final
hearing.
- But
the
statements
of this
witness,
when he
admits,
obviously
upset,
that
long
before
the
publication
of the
book and
the
documentary,
theses
opposed
to the
MC were
circulating
-
against
the
defendant
/
appellant
-
deserve,
on the
contrary,
special
consideration.
- All
this
without
renouncing
to say
we do
not
understand
why, in
relation
to these
facts,
here
refuted,
the
(first
instance)
Court
did not,
in its
sentence,
decided
to
declare
them as
unproven,
whereas,
as can
be seen
in the
motivation
related
to the
response
to
article
13 of
the
instruction's
basis,
it (the
Tribunal)
specifically
found:
|
"Art 13 ° -. The response to the content of Articles 12 and 13 can not dispense with the assertion (judged elementary according to rules of common experience) that, more than any theory or opinion on the causes of the disappearance of MMC, the fact of her disappearance dominates, with negative effects on the emotional / psychological state of the claimants, her parents. This negative emotional state is pre-existent to the book, the documentary and the interview mentioned in the lawsuit and should not be mixed up with the psychological consequences specific to these concrete events. " |
-
Therefore,
by
deciding
in the
sense
that it
decided,
the
appealed
sentence
ran the
risk of
flagrant
unconstitutionality
by
substantial
violation
of
article
37 of
the CRP
(Constitution
of the
Portuguese
Republic)
(1)
and
article
10 of
the ECHR
(European
Convention
on Human
Rights)
(7),
frontally
counteracting
the
prevailing
jurisprudence
of the
European
Court of
Human
Rights
in this
area.
- The
conditions
are not
met
for the
condemnation
at stake
neither
as to
the
existence
and the
application
of any
right of
the
claimants,
nor for
serious
prejudices
and/or
threat
of
prejudices,
even if
(those
conditions)
existed
- and
they do
not
exist –
they
never
could
outweigh
the
right to
opinion
and
freedom
of
expression
of the
defendant.
- In
addition,
the
appealed
sentence
violates
the
article
483 of
the CC
(6),
insofar
as no
evidence
of
damage
to the
claimants
resulted
from
the acts
of the
appellant
(GA).
- It
follows
that the
sentence
on
appeal
must be
broken,
being
deemed
totally
unjustified
to the
extent
that the
action
is not
proven,
with the
consequent
release
of the
defendant
in
relation
to all
the
demands
made
against
him and
recognizing
him the
constitutional
right to
opinion
and
freedom
of
expression. |
|
|
|
Page 03 |
PAGE
THREE
Allegations
of now
appellants
Guerra e
Paz
Publishers
and
Valentim
de
Carvalho
Films
- We
live in
a
democratic
State of
Law,
based on
pluralism
of
expression,
which
guarantees
freedom
of
thought
and free
disclosure,
besides
the fact
that we
must all
contribute
to the
enrichment
of
culture
through
the
publication
of books
and
documentaries.
- As it
is
undisputed
that the
claimants
have
achieved
notoriety
and fame
in
Portugal
and
around
the
world,
it is
not
possible
that
they
grant
interviews
to the
media,
even in
the
intimacy
of their
home,
when it
is
favourable,
and then
forbid
the
publication
of books
or
comments,
even on
publicly
known
facts,
when
they
feel
those
might be
unfavourable.
- Thus
the
sphere
of
private
life of
the
claimants,
as much
through
their
notoriety
as
through
their
option,
can only
be
considered
reduced,
especially
according
to the
terms
and
effects
of the
contents
of
Article
80-2 of
the CC
(3).
- The
current
autos
are made
up of
two
autonomous
actions:
a
declarative
condemnation
action
brought
against
the
defendant
GA,
asking,
in
particular,
that
he'd be
ordered
to pay
the
applicants
compensation
in the
amount
of
1.200.000
euros;
and an
appendix
action
in
which,
based on
the same
facts
and
grounds,
the
applicants
requested
that
various
defendants
would be
condemned
in
respect
of the
behaviour
mentioned
in
points 1
to VII
of the
sentence.
- The
appealed
sentence
considers
it
relevant
to
analyse
whether
the book
written
by the
co-defendant GA,
documentary
and
interview
are
illegal
/
anti-juridical
under
the
terms of
article
484 of
the CC
(8),
whether
there is
damage,
what is
the
amount
of
compensation
and
whether
the
claims
made in
the
appendix
lawsuit
are
adequate
to the
withdrawal
of the
committed
illicit
effects.
- The
appellants
consider
that it
does not
belong
to them
to
defend
the
co-defendant
GA, but
the way
the
sentence
is
constructed
obliges
them
to.
- The
author
of the
book
Maddie,
the
Truth of
the Lie,
co-defendant
GA, was
investigator
in the
criminal
investigation
into the
disappearance
of MMC,
having
been the
object
of
personal
and
professional
attacks
by the
claimants,
in the
national
and in
the
foreign
press.
- It
follows
that the
book
should
be
analysed
as a
legitimate
exercise
of the
co-defendant
GA in
defence
of his
honour
and
reputation
undermined
by the
claimants.
- Point
43 of
the
proven
facts,
in the
appealed
sentence,
refers
to a
statement
of the
appellant
VCF (Valentim
de
Carvalho
Filmes):
The
mystery
continues,
the
former
inspector
thinks
that one
day the
truth
will be
known.
Meanwhile
we only
know
that on
3 May
2007 MMC
has
disappeared
in Praia
da Luz.
She was
3 years
old and
was a
happy
child.
-
The
appealed
sentence
analyses
the
duties
of
reserve
required
from a
police
officer,
but
these
duties
only
apply to
serving
officers,
which
was not
the case
for
co-defendant
GA.
-
However,
without
disregard,
breach
of the
duty of
confidentiality
is not
capable
of
offending
the
reputation
of
claimants,
because
the
juridical
power
that
protects
them is
the
administration
of
justice.
- The
appealed
decision
has
documented
that the
illegality
of the
co-defendant
GA's
conduct
is
revealed
in the
kind of
resolution
of the
indicated
conflict
between
rights,
according
to the
effects
of
article
484 of
the CC
(8),
which is
not
surprising.
- Under
article
334 of
the CC
(9),
the
exercise
of a
right is
only
illegitimate
when the
holder
manifestly
exceeds
the
bounds
of
good-faith,
which
was not
the
case.
- The
collision
of
rights
must be
resolved
in
accordance
with the
assumptions
provided
in
article
335 of
the CC
(10)
and
cannot,
through
its
resolution,
assess
the
illegitimacy
of a
conduct.
- It
follows
that the
appealed
sentence
does not
actually
mention
any
illicit
fact
practised
by the
co-defendant
GA,
which
turns it
null,
under
article
615-1-d)
of the
CPC (Civil
Procedure
Code)
(11).
- The
same can
be said
of the
remaining
assumptions,
listed
in
article
483 of
the CC
(6),
which
have not
been
analysed
regarding
the
co-defendant
GA, when
even
less
analysed
was the
causal
link
between
the
statements
of the
co-defendant
GA in
the book
and the
documentary
and the
damage
that the
applicants
are
deemed
to have
suffered,
since
all were
dispersed
in time.
- It was
not
evaluated
if the
damage
that the
applicants
are
supposed
to have
suffered
results
directly
and
necessarily
from the
statements
of the
co-defendant
GA in
the book
and the
documentary
and not
from the
facts
stated
therein,
i.e the
disappearance
of MMC,
the
constitution
of her
parents
as
official
suspects
(arguidos)
and
their
being
the
subject
of
negative
news for
that
reason,
nationally
and
internationally.
- These
facts
being
public
and
notorious,
they
don't
lack
argument
or
proof,
under
the
terms of
article
412-1 of
the CPC
(12),
but even
so they
were
alleged
by the
applicants.
- Facing
the
facts
given as
unproven
on j)
and k)
and the
value
that the
courts
attribute
to the
death
damage,
it is
unfair
to award
compensation
of the
value
requested
by the
applicants,
be it
from the
point of
view of
the
economic
situation
of the
injured
party
and the
injuring
one.
- Only
in the
fourth
part of
the
award
are
listed
the
various
requests
made by
the
claimants
in the
appendix
action.
|
|
Page 04 |
 |
PAGE
FOUR
- At
stake in
the
present
autos is
the book
Maddie,
the
Truth of
the Lie
written
by the
co-defendant
GA and
published
by the
appellant
Guerra &
Paz
- points
16-22
proven
facts.
The
publishing
contract
was
celebrated
with the
appellant
GA on
10/3/2008,
the book
being
published
on the
24/7 of
the same
year.
- The
appellant
VCF
celebrated
with the
co-defendant
GA a
written
agreement,
referred
to as
"rights
option -
deal
memo",
on
7/3/2008,
for the
audiovisual
adaptation
of a
book
about
the
investigation
on the
disappearance
of MMC
in PDL -
point 35
of the
proven
facts of
the
sentence
on
appeal,
embodied
in the
terms
and
dates
mentioned
in
paragraphs
36 to 38
of the
proven
facts.
-
According
to the
terms of
article
5-1 of
the CPC
(13),
the
allegations
about
the
essential
facts
constituting
the
cause of
the
request
belong
to the
parties,
but the
judge is
not
subject
to the
allegations
of the
parties
about
the
investigation,
interpretation
and
application
of the
rules
according
to what
is
stipulated
by 5-3
- The
initial
application
that
gave
rise to
the
present
action
in
respect
of the
appellants,
does not
contain
facts
that
meet the
assumptions
listed
in
article
70-2 of
the CC
(14).
- Such a
legal
framework
provides
that the
threatened
or
offended
person
may
require
appropriate
measures
to the
circumstances
of the
case, to
avoid
the
execution
of the
threat
or
mitigate
the
effects
of the
offence
already
committed.
- The
book in
question
was
published
by other
publishers
in
various
countries
- point
28 of
the
proven
facts.
- Among
the
proven
facts,
an
English
and a
Portuguese
versions
of the
book
circulate
on the
Web,
without
the
authorisation
of the
appellants.
- On the
other
hand,
the
Portimão
Public
Prosecutor
commissioned
a
digital
copy of
the
investigation
file and
handed
it out
upon
request,
which
ended up
being
disclosed
on the
Web -
points
65 and
66
proven
facts.
- The
facts
relating
to the
criminal
investigation
into the
disappearance
of MMC
to which
GA
refers
in the
book, in
the
interview
for the
newspaper
Correio
da Manha
and in
the
documentary
are,
mostly,
the
facts
that
occurred
and are
documented
in the
investigation
(articles
27 and
28 of
the
instruction
basis) -
article
80 of
the
proven
facts.
-In
other
words,
despite
the bans
issued
and
without
the
appellants’
ability
to avoid
it, the
book in
Portuguese
and
English
versions,
as with
the
documentary,
circulate
on the
Web
illegally
and
against
the will
of the
holders
of copy
and
transmission
rights,
as well
as every
record
of the
criminal
investigation
into the
disappearance
of MMC..
- It was
considered
not
proven
that,
due to
the
defendant
GA's
assertions
in the
book,
documentary
and
interview
with
Correio
da Manha,
the
claimants
are
completely
destroyed
from
moral,
social,
ethical,
sentimental,
family
points
of view,
far
beyond
the pain
caused
by the
absence
of their
daughter
- point
j) of
unproven
facts in
the
appealed
sentence.
-
Finally,
for the
purposes
of the
requested
measures,
the
appealed
sentence
held
that the
three
defendants
functioned
as
vehicles
of the
illicit
act
committed
by the
defendant
GA, so
they
were
passive
subjects
of
measures
which,
under
article
70-2 of
the CC
(14),
must be
ordered,
indicating
that it
is
important
to
analyse
in
detail
each of
these
responses
and
checking,
case by
case, if
they are
legal,
appropriate
and
proportionate
to the
actual
case and
to find
out who
are the
recipients.
- What
is sure
is that
the
appealed
sentence
has not
analysed
them nor
given
them a
basis in
fact or
law, in
accordance
with the
provisions
of
article
158 of
the CPC
(15),
which
turns
the
sentence
null
under
the
terms of
article
615-1b)
of the
CPC (11).
- And
so,
without
any
foundation,
it was
determined
that the
prohibition
of sale
and the
order of
collecting
the
books to
be
handed
to the
claimants
embody
the
cited
attributes
and
should
be
addressed
to the
defendants
GA and
Guerra &
Paz.
- The
ban on
new
editions
of the
book or
the DVD,
such as
the
cession
of
publishing
and copy
rights
is
adequate
and must
be
addressed
to GA
and the
defendants.
- Now,
in the
specific
case,
following
the
injunction,
which
determined
some of
the
measures
now
decreed,
it was
considered
that
"the
book
should
not be
apprehended
through
an
injunction,
its main
motivation
being
the
defence
of the
personal
reputation
of the
police
inspector
in
charge
of
investigating
a
particular
crime
who
expresses
herein
his
interpretation
of the
data
collected
during
the
investigation
and made
public
by the
competent
entities,
considering
as
certain
that the
claimants
had
voluntarily
limited
their
right to
privacy
when
they
profusely
spread
the case
through
the
media"-
www. dgsi.pt
(14.10.2010
Appeal
judgement)
(16)
- Faced
with
these
facts
given as
proven
in
paragraphs
30 and
63, the
measures
enacted
are
inadequate
and do
not
attenuate
the
effects
of the
alleged
offence.
-
Establishing
the
obligatory
financial
penalty
to
€50.000
is also
without
foundation
and is
excessive
and
disproportionate.
|
|
|
|
Page 05 |
|
PAGE
FIVE
- The
judgement
is
suffering
from
nullity
under
the
scope of
paragraphs
b) and
d) of
art.
615-1 of
the CPC
(11)
and
should
be
revoked,
appellants
to be
acquitted
of
measures
decreed,
with all
the
legal
consequences.
- And
because
the
issued
decision
violated
namely
the
articles
37(1),
38 (2)
and 42 (17)
of the
CRP, 5 (13),
158 (15)
and 615
(11)
of the
CPC, 334
(9)
and 335
(10)
of the
CC and
the
article
19 of
the
Declaration
of Human
Rights (18)
|
Counter-alleging , the respondents decided on confirming the first instance judgement.
Gathered legal visas, decision is required. |
2. In
the
first
instance,
the
following
facts
were
given as
proven
:
1. The
applicants
Gerald
McCann
and Kate
are
married
to each
other (al.A).
2. The
applicant
Madeleine
McCann
was born
on
12.5.2003
,
daughter
of KMC
and GMC
(al.B).
3. The
applicant
Sean
McCann
was born
on
1/2/2005,
son of
KMC and
GMC (al.C).
4. The
applicant
Amelie
McCann
was born
on
1/2/2005
,
daughter
of KMC
and GMC
(al.D).
5. The
applicant
MMC has
been
missing
since
3/5/2007
,
resulting
in the
criminal
investigation
No. 201
/
07.0GALGS,
opened
by the
prosecutor
of
Portimao
(al.E).
6. The
dogs
Eddie
and
Keela,
from the
British
police,
have
detected
human
blood
and
cadaver
scent in
the
apartment
5A of
the
Ocean
Club (al.AR).
7. The
dogs
Eddie
and
Keela,
from the
British
police,
have
detected
human
blood
and
cadaver
scent in
the
vehicle
rented
by the
applicants
KMC and
GMC
after
Madeleine's
disappearance
(al.AS).
8. The
applicants
KMC and
GMC were
constituted
(by
lawyer)
assisted
witnesses
(arguidos)
in the
criminal
investigation
(al.F).
9. Pages
2587-2602
of the
criminal
investigation,
the
10/9/2007,
Chief
Inspector
Tavares
de
Almeida
wrote a
report
and in
particular
the
following
:
"Given
what we
could
establish,
the
facts
point
towards
the
death of
Madeleine
McCann
during
the
evening
of 3 May
2007, in
the
apartment
5A of
Praia da
Luz
Ocean
Club
resort,
occupied
by the
McCann
couple
and
their
three
children
(page
2599)
(... )
Taking
into
account
all that
was
presented
in the
autos,
it
results
that :
A) The
minor
Madeleine
McCann
died in
apartment
5A of
the
Ocean
Club in
Praia da
Luz in
the
evening
of May
3, 2007
;
B) A
simulation
of
abduction
took
place ;
C) In
order to
make
possible
the
death of
the
minor
before
22h, a
story
about
checking
on the
McCann
children,
as they
slept,
was
invented
;
D) Kate
and
Gerald
McCann
are
involved
in the
concealment
of the
body of
their
daughter
MMC;
E) On
this
date it
seems
there is
no solid
evidence
that the
death of
the
minor
was not
due to a
tragic
accident;
F) Given
what has
been
confirmed
so far,
everything
indicates
that the
couple
McCann,
as
self-defence,
does not
want to
deliver
immediately
and
voluntarily
the
body,
existing
a high
probability
that the
same was
removed
from the
place
where it
was
originally
disposed
of. This
situation
is
likely
to raise
questions
about
the
circumstances
in which
occurred
the
death of
the
minor.
Thus we
suggest
that
autos be
delivered
to the
prosecutor
of Lagos
aiming :
G) A
possible
new
interrogation
of
assisted
witnesses
KMC and
GMC;
H)
Evaluate
the
adequate
measure
of
constraint
to be
applied
in the
case
(page
2601)" (al.AT).
10. In
page
2680 of
the
criminal
investigation
, on
10/9/2007
, the
prosecutor
in
charge
of the
investigation
issued
an order
which in
particular
says
this:
"During
the
investigation
which
goes on
regarding
the
disappearance
of
Madeleine
McCann,
the
proceedings
being
therefore
open
either
to
confirm
or to
deny
that the
occurrence
of the
disappearance
is
related
to the
crimes
of
kidnapping,
homicide,
exposure
or
abandonment
and
concealment
of
corpse,
and in
accordance
with the
established
plan,
the need
was felt
to
gather
information
on the
actual
time of
the
disappearance,
verify
the
location
of each
stakeholder
– from
the
McCann
couple
to the
group of
friends
with
whom
they
were on
holiday
in
tourist
apartments
in the
Praia da
Luz
Ocean
Club,
i.e
Michelle
Jane
Tanner,
Russell
James
O'Brien,
David
Matthew
Oldfield,
Rachael
Jean
Mampilly
David
Anthony
Payne,
Fiona
Elaine
Payne
and
Diana
Webster
– when
the
events
occurred
and in
the
moments
that
followed,
and
determine
the
movements
of the
assisted
witnesses,
Gerald
McCann
and Kate
Healy,
during
their
stay in
Portugal,
while
also
establishing
connections
between
all
stakeholders
and
third
parties. |
|
|
|
Page 06 |
PAGE SIX
In this
sense ,
and
because
the
following
investigation
needed
is
essential
for the
discovery
of truth
,
especially
the
analysis
of
information
on
telephone
exchanges
between
the
McCann
couple
and
their
friends,
and
other
phone
numbers,
which
have
shown to
be
related
to
events
of May
3rd 2007
evening,
the
autos
are
delivered
to the
Judge of
Criminal
Investigation
(al.AU)."
-
11. In
page
3170 of
the
criminal
investigation,
on
3/12/2007,
the JCI
of
Portimao
issued a
decree
in which
he
stated
particularly
this:
"Since
the
investigation,
in these
autos,
concerns
the
practice
of
kidnapping,
homicide,
exposure
or
abandonment
and
concealment
of
corpse,
the
first
three
crimes
being
punished
with a
sentence
of more
than 3
years
imprisonment,
and
since it
seems
convenient
to
identify
the
person
who
exhibited
suspicious
behaviour
in the
vicinity
of the
place
where
the
child
disappeared
from, as
mentioned
in
statements
from
pages
3150 and
3154 sq,
the data
requested
by the
public
prosecutor
being
thus
very
important
to
discover
the
truth, I
order
(...)
the
soliciting
telecommunications
operator
Portugal
Telecom
(...)" (al.AU).
-
12. The
defendant
Gonçalo
Amaral
was,
until
2/10/2007,
the PJ
inspector
in
charge
of
coordinating
the
investigation
into the
disappearance
of the
applicant
Madeleine
MC (al.G).
-
13. The
defendant
GA is
retired
from the
PJ since
1/7/2008
(art.19).
-
14. On
21/7/2008,
the
General
Prosecution
of the
Republic
informed
through
a "note
for
social
communication"
that the
investigation
mentioned
in 5.
would be
shelved
and
could be
reopened
at the
instigation
of the
Public
prosecutor
or at
the
request
of any
interested
party,
if new
evidence
arose,
raising
serious,
relevant
and
consistent
investigation
(art.
20).
-
15. The
archiving
dispatch
concerning
the
criminal
investigation,
issued
le
21/7/2008
by the
prosecutor,
says in
particular
this ;
"Taking
into
account
that
certain
points
in the
assisted
witnesses'
(arguidos)
and
witnesses'
statements
revealed,
at least
apparently,
contradiction
or
lacked
physical
confirmation,
it was
decided
to carry
out the
"reconstitution
of the
fact", a
diligence
that is
consecrated
in
article
150 of
the
Penal
Process
Code
(19)
in the
sense of
duly
clarifying,
on the
very
location
of the
facts ,
the
following
very
important
details,
among
others
:
1) The
physical,
real and
effective
proximity
between
Jane
Tanner,
Gerald
McCann
and
Jeremy
Wilkins,
at the
moment
when the
first
person
walked
by them,
and
which
coincided
with the
sighting
of the
supposed
suspect,
carrying
a child.
From our
perspective
it is
strange
that
neither
Gerald
McCann
nor
Jeremy
Wilkins
saw her,
or the
alleged
abductor,
despite
the
exiguity
of the
space
and the
tranquillity
of the
area.
2. The
situation
concerning
the
window
to the
bedroom
where
Madeleine
slept,
together
with the
twins,
which
was
open,
according
to Kate.
It has
seemed
necessary
to
clarify
if there
was a
draught,
since
movement
of the
curtains
and
pressure
under
the
bedroom
door are
mentioned,
which,
eventually,
could be
verified
through
the
reconstitution.
3. The
establishment
of a
timeline
and of a
line of
effective
checking
on the
minors
that
were
left
alone in
the
apartments,
given
that, if
it is
believed
that
such
checking
was as
tight as
the
witnesses
and the
assisted
witnesses
describe
it, it
would
be, at
least,
very
difficult
to
reunite
conditions
for the
introduction
of an
abductor
in the
residence
and the
posterior
exit of
said
abductor
with a
child,
particularly
through
a
reduced
width
window.
It is
added
that the
supposed
abductor
could
only
pass,
through
that
window,
holding
the
minor in
a
different
position
(vertical)
from the
one that
witness
JANE
TANNER
saw
(horizontal).
4. What
happened
during
the time
lapse
between
approximately
6.45/7
p.m. -
the time
at which
Madeleine
was seen
for the
last
time in
the
apartment
by a
different
person
(David
Payne)
from her
parents
or
siblings
- and
the time
at which
the
disappearance
is
reported
by Kate
Healy -
at
around
10 p.m.
5. The
immediate
appreciation
of
evidence,
or in
other
words,
the
fulfilment
of the
principle
of
contiguity
of
evidence
offers
obvious
and well
known
advantages
to form
a
conviction,
as firm
as
possible,
about
what was
seen by
Jane
Tanner
and the
other
interposers,
and,
eventually,
to
dismiss
once and
for all
any
doubts
that may
subsist
concerning
the
innocence
of the
missing
child's
parents.
To
achieve
this
according
to the
standards
and
conventions
in
force,
legal
procedures
were
instituted
and the
presence
of the
witnesses
was
requested,
inviting
them to
participate,
also
appealing
to
solidarity
with the
McCann
couple,
as it is
certain
that
since
the
beginning
they
adhered
to that
process
diligence.
Nevertheless,
despite
national
authorities
assuming
all
measures
to
render
their
trip to
Portugal
viable,
for
unknown
reasons,
after
the many
doubts
that
they
raised
about
the
necessity
and
opportunity
of their
trip
were
clarified
several
times,
witnesses
chose
not to
attend,
which
made the
reconstitution
impractical. |
|
|
|
Page 07 |
PAGE
SEVEN
We
believe
that the
main
damage
was
caused
to the
McCann,
who lost
the
possibility
to prove
what
they
have
protested
since
they
were
constituted
arguidos
(by
lawyer
assisted
witnesses)
:
their
innocence
in
relation
to the
fateful
event.
The
investigation
was also
disturbed,
because
said
facts
remained
without
clarification
(...).
This
(20)
shows
that the
parents
were not
persistently
worried
about
their
children
[and]
that
they
didn't
check on
them
like
they
afterwards
declared
they
did,
rather
neglecting
their
duty to
protect
those
same
children,
although
not in a
temerarious,
or
gross,
manner
(...)
While
the fact
that
Madeleine
disappeared
from
apartment
5A of
the
resort
Ocean
Club
is
inescapable,
the
manner
and
circumstances
under
which
this
happened
are
unknown
-
despite
the
numerous
diligences
made on
that
purpose
-,
therefore
the
range of
crimes
that
were
conjectured
and
referred
to
during
the
investigation
remains
untouched
(...)
Concerning
the
other
surmised
crimes
(21),
they are
no more
than
that and
in spite
of our
perception
that,
due to
its high
degree
of
probability,
the
occurrence
of a
homicide
cannot
be
discarded,
such
cannot
be more
than a
mere
supposition,
due to
the lack
of
supporting
elements
in the
files.
It
appears
that the
non
involvement
of the
parents,
assisted
witnesses,
in any
penally
relevant
action
stems
from the
objective
circumstances
of them
not
being
inside
the
apartment
when
Madeleine
disappeared,
from the
normal
behaviour
that
they
displayed
until
said
disappearance
and
afterwards,
as can
be amply
concluded
from
witness
statements,
from the
telephone
communications
analysis
and also
from the
forensics'
conclusions,
namely
the
reports
from the
FSS and
from the
National
Institute
for
Legal
Medicine.
To this
should
be added
that in
fact
none of
the
clues
that led
to their
constitution
as
assisted
witnesses
was
later
confirmed
or
consolidated.
Let's
judge
it: the
information
concerning
a
previous
alert of
the
media
before
the
police
was not
confirmed,
the
residues
that
were
marked
by the
dogs
were not
corroborated
in
laboratory,
and the
initial
indications
from the
above
transcribed
email
(22),
better
examined
afterwards,
that
ended up
appearing
to be
inconclusive.
Even if
hypothesising
that
Gerald
and Kate
McCann
might be
responsible
over the
child's
death,
it would
still
have to
be
explained
how,
where,
when,
with
what
means,
with
whose
help and
where to
they
freed
themselves
of her
body
within
the
restricted
time
frame
that
would
have
been
available
for them
to do
so.
Their
daily
routine,
until
the 3rd
of May,
had been
circumscribed
to the
narrow
borders
of the
Ocean
Club
resort
and to
the
beach
next to
it,
unknowing
the
surrounding
and,
apart
from the
English
friends
that
were
with
them on
holiday,
they had
no known
friends
or
contacts
in
Portugal
(…)
Tests
and
analyses
were
performed
in two
of the
most
prestigious
and
credentialed
institutions
- the
National
Institute
for
Legal
Medicine
and the
British
laboratory
Forensic
Science
Service
-, their
final
results
having
neither
positively
evaluated
the
collected
residues
nor
corroborated
the
dogs'
alerts.
In spite
of all
this, it
was not
possible
to
obtain
any
evidence
that
would
allow
for a
average
man,
enlightened
by
criteria
of
logics,
of norms
and of
the
general
rules of
experience,
to
formulate
any
lucid,
sensate,
serious
and
honest
conclusion
about
the
circumstances
under
which
the
child
was
removed
from the
apartment
(whether
dead or
alive,
whether
killed
in a
neglectful
homicide
or an
intended
homicide,
whether
the
victim
of a
targeted
or
opportunistic
abduction),
nor even
to
produce
a
consistent
prognosis
about
her
destiny
and
inclusively
– and
that's
the most
dramatic
- to
establish
whether
she is
still
alive
or, as
it seems
the more
likely,
she is
dead (…)
Therefore,
everything
having
been
examined,
analysed
and duly
pondered,
concerning
what is
left
exposed,
we
determined
the
archiving
of the
autos
concerning
the (by
lawyer)
assisted
witnesses
Gerald
Patrick
McCann
and Kate
Marie
Healy,
due to
the lack
of
clues
of their
practising
any
crime" (al.AQ)
- 16.
The
defendant
Guerra &
Paz SA
is a
commercial
company
whose
objective
is
namely
editing,
publishing
and
trading
books,
import
and
export
included
(al.L).
- 17. On
10/03/2008,
defendants
G&P
Editors
and
Gonçalo
Amaral
celebrated
a
written
agreement
(attached
at pp.
277-281),
referred
to as
"copyright
transfer
contract",
in terms
of which
the
defendant
GA
yields
to
defendant
G&P for
a period
of ten
years,
the
exclusivity
of
copyrights
of the
book
Maddie -
a
Verdade
da
Mentira
in
printed
or
electronic
form, in
any
language
and in
the
whole
world (al.M).
- 18. 4a
-1
clause
of the
agreement
is
worded
as
follows
:
"The
remuneration
to be
paid by
the
first
contractor
to the
second
contractor,
for
copyrights
associated
with
editions
of his
book
commercialised
in
Portugal,
will be
:
a) 12 %
of the
selling
price
for each
copy
sold
(VAT
excluded)
up to
30.000
copies
b) 14 %
of the
selling
price
for each
copy
sold
(VAT
excluded)
from
30.001
to
50.000
copies
c) 16%
of the
selling
price
for each
copy
sold
(VAT
excluded)
from
50.001
on" (
Al.N) .
- 19.
5a-2
clause
of the
agreement
is
worded
as
follows
:
" If the
first
contractor
sells
the copy
rights
of the
book in
other
languages
in any
country,
the
liquid
income
of this
sale,
net of
costs
directly
related
to the
sale
transaction,
will be
shared
between
the
first
and
second
contractors
in equal
parts,
i.e 50%
for each
"( al.O
).
|
|
|
|
Page 08 |
|
PAGE
EIGHT
- 20.
The
defendant
Gonçalo
Amaral
is the
author
of the
book
Maddie -
A
Verdade
da
Mentira,
published
by the
defendant
Guerra e
Paz
Editors,
SA.
(al.H)
- 21. On
the
cover of
the book
stands,
in red,
the word
"confidential"
and on
the 4th
cover it
reads
"Reserved
read"
and
"contains
unique
revelations".
(al.P)
- 22. On
the data
sheet of
the
book, on
page 4,
Figure
especially
this:
"Review:
Fernanda
Abreu.
Cover
and
pagination
: Ilidio
J.B.
Vasco.
Photography
author :
Sandra
Sousa
Santos ©
Guerra e
Paz,
Editores,
SA.
2008.
All
rights
reserved.
© Cofina
media
for
photographs
and
infoengraving,
developed
by Nuno
Costa."
(al.Q)
23. Is
part of
Maddie –
A
Verdade
da
Mentira
particularly
the
following
prologue:
This
book is
rooted
in the
need I
felt to
restore
my
reputation,
which
has been
undermined
in the
public
arena,
without
the
institution
to which
I have
belonged
for 26
years,
the
Portuguese
Judicial
Police,
allowing
me to
defend
myself
or to do
it
institutionally.
I asked
permission
to speak
in this
sense,
that
request
remained
unanswered.
I
strictly
followed
the
rules of
the PJ
and I
kept
silent.
This,
however,
lacerated
my
dignity.
Later I
was
removed
from
the
investigation.
I
realised
then
that the
time had
come to
defend
myself
publicly.
To
achieve
this, I
immediately
asked an
early
retirement,
in order
to
regain
the
fullness
of my
freedom
of
expression.
This
book has
yet
another
major
objective.
That of
contributing
to the
discovery
of
material
truth so
that
justice
is done
in an
investigation
known as
The
Maddie
Case.
These
are the
fundamental
values
to which
I
subscribed
by
imperative
of
conscience,
conviction
and
discipline
regarding
the
institution
to which
I was
proud to
belong.
My
retirement
will not
extinguish
these
values,
they'll
go on
being
present
in my
life.
This
book
does not
question
the work
of my
colleagues
in the
police
or
compromise
the
ongoing
investigation.
It is my
profound
understanding
that
revealing
all the
facts,
in this
type of
work,
could
jeopardise
future
operations,
critical
for the
discovery
of the
truth.
However,
readers
will
discover
data
that
they
ignore,
interpretations
of facts
- always
in the
light of
law -
and, of
course,
relevant
questions.
A
criminal
investigation
compromises
only
with the
search
for
material
truth.
It
should
not be
concerned
about
political
correctness.
(pp.
11-12)
(…)
We were
told
many
things
so far -
truths
and lies
- and
there
was,
apart
from the
duty to
provide
information,
disinformation
campaigns
aimed at
discrediting
the
criminal
investigation
in
development
and
those
who were
responsible
for it.
For me
the
investigation
ceased
to exist
on
October
2, 2007,
when it
appeared
to have
outweighed
a new
English
ultimatum
on the
day of
the
summit
on the
Lisbon
Treaty,
so
nothing
surprised
me more.
The
previous
day I
had
attended
an nth
media
spectacle,
the
ultimate
forcing
to the
thesis
of the
kidnapping
with the
disclosure
by the
McCann
family
of a
sketch
of a
suspected
abductor.
Nothing
surprises
me
anymore.
- Do not
pay
attention.
It's
carnival.
We
continued
our
convenient
conversation,
but I
felt
that my
world
had like
collapsed
for
good.
After
hanging
up, I
spotted
again
the
almond
trees,
planted
in the
hard
Algarvian
ground,
a soil
that
could
have
influenced
the
corpse
concealment
strategy
and, I
thought,
wouldn't
God have
dashed
in
making
them
bloom in
winter ?
(p.16)
(...)
An
investigation
destined
for
shelving
I have a
feeling
that
with
this
statement,
the
national
director
intends
to
prepare
the
public
opinion
for the
inevitable,
i.e for
the end
of the
investigation
and the
shelving
of the
case.
That
seemed
to be
the
strategy
adopted
on 2
October
2007,
which
was
consolidated
with the
execution
of tasks
to
fulfil
the
calendar,
a bit
"for the
English
see"
(23)
I feared
immediately
for the
present
investigation
to be
questioned
so as to
facilitate
a
possible
shelving.
This
investigation
had come
to
undermine
the
image of
the PJ,
its
inspectors
and
Portugal,
and
that's
why
perhaps
it had
to be
discontinued.
The
constitution
of Kate
Healy
and
Gerald
McCann,
Madeleine's
parents,
as
arguidos
(by
lawyer
assisted
witnesses)
should
have
marked a
turnaround
in the
relationship
among
the
police
forces
and the
couple.
If, on
the
Portuguese
police
side,
the
break
occurred,
it seems
that the
same
cannot
be said
of the
English
police.
There
was an
agreement
between
the two
police
forces
to move
forward
in an
investigation
that was
seriously
considering
the
possibility
that the
child
died in
the
apartment,
but
suddenly
the
English
police
veered
without
consistent
technical
explanation
- as we
shall
see
further. |
|
|
|
Page 09 |
|
PAGE
NINE
We have
always
found it
odd the
way the
couple
were
treated,
even
after
they got
their
arguido
status,
and
their
eventual
access
to
police
information.
I see
the
mentally
investigation,
the
memories
gush
cascaded.
I think
mainly
of this
child
about to
be 4
years
old, who
all of a
sudden
was
denied
the
right to
existence,
to
become a
woman,
to a
life of
happiness
and
potential
success
in the
company
of her
family
and her
friends,
that was
abruptly
lost.
Nothing
makes
sense.
It seems
that
smothering
the
facts by
decreasing
the
strength
of any
clue is
being in
preparation,
forgetting
the
rights
of this
child
and of
others
too. But
who
wants
such an
outcome
? Who
demanded
my
removal
from the
operational
coordination
of the
investigation
? Who
wants to
end the
status
of the
McCanns
and
Murat as
assisted
witnesses
? Those
who
insist
on the
thesis
of the
kidnapping
? Those
who
claimed,
and
later I
will say
who they
are,
that
people
were
arrested
for much
less in
England
? Or
those
who
persist
in
lying,
forgetting
the
search
for the
material
truth ?
The
possible
shelving
of the
investigation
and the
end of
the
searches
certainly
favour
someone.
After
leaving
Portimao,
October
2, 2007,
I
decided
to
forget
this
case. It
was
perhaps
better,
given
the
powers
that
seemed
to be
involved.
If the
authorities
of the
native
country
of the
child
are
unwilling
to know
what
happened
to her,
feeding
the
thesis
of the
kidnapping,
why
should I
be
concerned
? This
is not
the
inopportune
(or
induced
by the
journalist)
remark
of a
police
director
(24)
that
will
erase
the
existing
evidence
(it was
not the
intent
as
well),
our work
is set
in the
stone of
the
autos.
Would
those be
destroyed
in order
to erase
what has
been
done,
even
then, we
still
have our
memories
and the
memories
of those
who have
carried
out with
us at
arm's
length
the
arduous
task of
trying
to find
the
material
truth (
pp.19-20)
(…)
Yes, a
child
has
died.
And I do
not say
it by
value
judgment,
but by
deduction
based on
the
collection
of
information,
hints
and
proven
facts
contained
in the
autos.
(p.21)
(...)
The
caution
of a
decision
At
Portimao
I meet
Chief
Inspector
Tavares
de
Almeida,
who was
part of
the team
which I
coordinated.
We have
known
each
other
since we
entered
the PJ.
The
words of
the
national
director
worry
him, he
speaks
of an
investigation
request,
already
filed
with the
national
director
of the
PJ. He
says the
investigation
of our
work
will
restore
the
truth.
During
the five
months
investigation,
we heard
a little
of
everything
, but we
have
done our
job.
We
remember
what we
have
done,
the
efforts
and,
honestly,
we are
not sure
that
others
could
have
done
better.
This is
not
self-sufficiency,
it is
confidence
in the
rigour
of the
work of
all
police
officers
involved.
- Look !
These
people
(24),
do they
know how
to sum
things
up
? How
can one
speak of
precipitation
when the
McCann
became
assisted
witnesses
four
months
after
the
facts ?
Do not
they
know the
principle
of
non-self-incrimination
?
He was
referring
to the
legal
prohibition
to take
the
testimony
of a
person
as a
witness
(26)
to the
point
where
that
person
might
let know
facts
that
would
eventually
incriminate
them. In
other
words,
when
someone
is about
to make
statements
on a
specific
case and
when, at
some
point,
it
appears
that
this
person
might be
involved
or
responsible
for the
practice
of an
unlawful
act,
this
person
has to
be made
arguido
(a).
So are
preserved
the
rights
and
duties
of
citizens.
Curiously,
and
contrary
to what
we see
very
often in
the
press,
especially
in the
English
media,
the
arguido
status
protects
the (by
lawyer)
assisted
witnesses,
since
they can
keep
silent
and thus
avoid
making
false
statements
- as in
the case
of a
simple
witness.
- I
agree
with
you. If
errors
were
made in
this
investigation,
the
delay in
changing
the
status
of the
McCanns
is one
of them.
There
was too
much
politics
and not
enough
police.
- Well,
I
wouldn't
go that
far. The
error
was to
treat
the
couple
"with
tweezers".
Remember
how very
soon we
saw that
many
things
did not
fit and
that the
McCanns
were
entitled
to
privileges.
That is
not
normal !
(p.23)
- Maybe
the
national
director
thinks
that the
McCanns
left the
Algarve
because
of the
arguido
status.
- They
stayed
in the
Algarve
as long
as the
abduction
thesis
was
up-to-datexc
... When
this
thesis
was
questioned
, they
immediately
started
talking
about
returning
to
England.
- Hence
we can
conclude
that the
arguido
status
was only
a
pretext
to
abandon
the
country.
- You
know,
there
are
British
journalists
who
believed
that
Portugal
was a
country
of the
third
world
... I
did not
agree
and I
have not
changed
my mind,
however
only in
countries
of the
third
world
the head
of a
ongoing
criminal
investigation
is
removed
whereas
he was
not
implicated
by the
investigation
that he
led.
- There
is much
talk of
governmentalization
of
justice
... we
forget
how
influence
can
affect
any
criminal
investigation can be
influenced... |
|
|
|
Page
10 |
PAGE
TEN
- It's
easy ...
Trustful
police
officers
are made
responsible
for the
investigation...
Then, if
things
go
wrong,
the
responsible
ones are
replaced
...
- I
don't
think it
was the
fundamental
reason,
but ...
- There
are
always
valid
and
legal
elements
...
Finally.
The only
obstacle
to the
management
of the
investigation,
almost
political
... are
the
senior
leaders
of the
police
forces.
They
must
confront
bad
situations
and
contrary
to the
interests
of the
investigation.
They may
not
agree
with
everything
on the
sole
purpose
of
staying
on to
power
...
- My
friend
...
People
do not
direct
the
police
forces
for
personal
interest
... They
lead in
the
pursuit
of the
public
interest.
This is
the only
way to
understand
the role
of the
police
in a
democratic
State of
law.
- But
think a
little!
We can
get to
the
point
where
only
officers
agreed
by the
arguidos
will be
in
charge
of some
investigations
... It
could be
a
question
of
'modernity
' .
Fraud or
breach
of trust
?
During a
relaxation
moment
in one
of these
meetings
(27),
I would
have
committed
a gaffe
or, who
knows,
been
inconvenient
and
undiplomatic.
Concerned
with the
possibility
that the
McCann
couple
might
be, in
one way
or
another,
involved
in the
disappearance
of their
daughter,
and as I
reckoned
the
types of
crimes
that
could be
imputed
to them,
a fact
came to
my mind.
Were the
responsibility
of
McCann
actually
confirmed,
then the
crime of
fraud or
breach
of trust
concerning
the fund
created
to
search
for
Madeleine,
a fund
that
held
more
than 2
million
pounds,
would
follow.
The
debate
was open
and, in
fact,
the
assumptions
pointed
to the
aggravated
fraud
or
breach
of trust
crimes,
but it
did not
belong
to
Portugal
to
investigate
and
judge
such a
crime.
It
belonged
to the
UK, as
the fund
was
registered
there.
Our
English
colleagues
became
then
aware of
a harsh
reality:
the
strong
possibility
of a
crime to
be
investigated
in their
country,
having
the
McCanns
as
possible
suspects,
a
prospect
that did
not seem
to
please
them. I
noticed
the
sudden
pallor
that
invaded
their
faces.
(p.193)
(…)
A
disappearance
, a
window
and a
dead
body
Reached
this
point,
it is
important
to make
a
deductive
synthesis
of this
case. In
other
words,
reject
what is
false ;
discard
what you
cannot
prove
for lack
of
sufficient
evidence
;
indicate
as valid
and
established
what was
proven .
So :
1. The
thesis
of the
abduction
has been
defended
by
Maddie
's
parents
since
the
first
hour;
2.
Within
the
group,
only the
parents
claim to
have
seen
open the
window
in the
missing
child's
bedroom
; most (
travelling
companions
) cannot
reliably
testify
on this
point,
as they
ran
towards
the
apartment
only
after
Kate
McCann
launched
the
alarm.
3. The
only
independent
statement
mentioning
the open
window
and
shutters
was made
by one
of the
Ocean
Club
nannies,
Amy, who
arrived
at
22:20/30,
pretty
after
the
alert,
turning
hence
her
statement
of no
use for
the
crime
time
topic.
4. All
statements
and
testimonies
reveal
numerous
inaccuracies,
incongruities
and
contradictions
- some
could
even be
described
as false
testimony.
In
particular
the
key-testimony
for the
abduction
thesis,
that of
Jane
Tanner,
loses
all
credibility
due to
constant
evolution
which
makes it
ambiguous
and
disqualified
.
6. There
is a
unfound
body, an
ascertainment
confirmed
by the
English
EVRD and
CSI dogs
and
corroborated
by
laboratory's
preliminary
reports
(pp.219-220)."
(al.I)
24. The
defendant
Gonçalo
Amaral
concluded
his book
Maddie -
A
Verdade
da
Mentira
as
follows
:
" For me
and for
the
inspectors
who
worked
on this
case
until
October
2007,
the
investigation
findings
include
:
1) The
minor
Madeleine
McCann
died in
the
apartment
5A of
Vila da
Luz
Ocean
Club
Vila, on
the
evening
of 3 May
2007;
2) There
has been
a
simulation
of
kidnapping
;
3) Kate
Healy
and
Gerald
McCann
are
suspected
of
involvement
in the
concealment
of their
daughter's
body;
4) Death
could
have
occurred
as a
result
of a
tragic
accident.
5) There
are
clues of
neglect
in the
protection
and
safety
of
children
(
pp.220-221
)". (
al.J )
25. The
book
Maddie -
A
Verdade
da
Mentira
was
launched
on
24/07/2008
in El
Corte
Inglês
Shopping
Centre
in
Lisbon.
( al.R )
26. On
the
launch
day
(24/07/2008),
the book
was also
sold
with the
newspaper
Correio
da Manha.
( Al.S ) |
|
|
|
Page
11 |
|
PAGE
ELEVEN
27. The
book
Maddie ,
the
Truth of
the Lie
had the
following
editions
in
Portugal
:
1st
edition
in July
2008,
30.000
printed
copies
2nd in
July
2008,
10.000
printed
copies
3rd in
July
2008,
10.000
printed
copies
4th in
July
2008,
30.000
printed
copies
5th in
August
2008,
25.000
printed
copies
6th in
August
2008,
10.000
printed
copies
7th in
August
2008,
15.000
printed
copies
8th in
August
2008,
10.000
printed
copies
9th in
August
2008,
10.000
printed
copies
10th in
August
08,
10.000
printed
copies
11th in
August
08,
10.000
printed
copies
12th in
2008
10.000
printed
copies [al.T)
28. The
book was
published
through
other
editors
in the
following
countries
: Spain,
September
2008,
with the
possible
trading
in
Spanish
in South
American
Spanish
speaking
countries
;
Denmark,
November
2008,
with
possible
commercialisation
in other
Nordic
countries
; Italy
,
December
2008,
with the
commercialisation
in
Italian
for all
the
world ;
Holland,
April
2009,
with
commercialisation
in Dutch
for all
the
world ;
Germany,
June
2009
with
commercialisation
in
Austria
and
Switzerland
[al.U)
29.
Within
the
scope of
the
injunction
attached
there
were
only
around
7.000
copies
of the
book
delivered
to the
applicants
legal
representative
[al.V)
30.
Copies
of an
English
and
Portuguese
version
circulate
in the
internet
without
the
authorisation
of
Guerra e
Paz,
Editores
SA.
[al.X)
31. The
cover
price of
the book
Maddie -
the
Truth of
the Lie
in
Portugal
was
determined
by the
defendant
Guerra&Paz
on the
amount
of 13.33
€ VAT
included
(art.
2º).
32. The
sale of
the
books
was
partly
on
consignment
and
another
part
subject
to right
of
return
for
reasons
such as
faults,
use or
not
being
sold
(art.23°)
33. The
defendant
Goncalo
Amaral
received
the
following
amounts
from the
sale of
the
book:
2008 and
2009,
the
amount
of
€342.111,86
(art. 3°
et 4°)
34. The
defendant,
VC-Valentim
de
Carvalho
is a
commercial
society
that
creates,
develops,
produces
and
promotes
the
exhibition
and
broadcast
of
cinematographic
and
audiovisual
works.(al.AA)
35. On
the 7th
March
2008,
the
defendant
Gonçalo
Amaral
and the
defendant
Valentim
de
Carvalho
signed a
written
agreement
(pp.
282-283)
designated
concession
of
rights -
Option
of
Rights –
deal
demo”
through
which
the
defendant
GA gave
up the
exclusive
rights
of film
adaptation
(documentary
and
fiction)
of a
book
about
the
investigation
of the
disappearance
in Praia
da Luz.
(al.AB)
36. On
the 11th
March
2008,
the
defendant
GA and
the
defendant
Valentin
de
Carvalho
signed a
written
agreement
(pp.
284-288)
,
designated
“Transfer
of
rights-Option
contract”
through
which
the
defendant
GA gave
up to
the
defendant
VC for 2
years
the
exclusive
option
rights
to adapt
the book
into
documentary
and/or
fiction
that may
have the
format
of a
film for
cinema
or a TV
movie. (al.AC)
37.
Clause 2
of this
agreement
states
the
following:
By the
transfer
of these
exclusive
right of
option,
VCFilmes
compromises
to pay
the
author
the
gross
sum of
25.000,
subject
to legal
fees and
added
VAT. (al.AD)
38.
According
to
clause
4, and
concerning
the
adaptation
of the
book
into
documentary,
the
author
is
obliged
to
participate
as a
narrator,
transferring
all
image
and
sound
rights.
2 For
that
participation
and
transfer
of all
the
patrimonial
content
of
author
rights
to
VCFilmes
the
author
will
receive
the
gross
sum of
15.000
euros,
subject
to legal
fees. 3.
For the
transfer
of
rights
mentioned
in 2 the
author
will
receive
10% of
all
receipts
national
or
international
receipts
for the
trading
of the
documentary
(in all
platforms
and
supports
invented
or yet
to be
invented)
after
deduction
of
production
costs. (al.AE)
39. On
6/06/2008,
the
defendant
VC-Filmes,
Audiovisuais,
SA
agreed
with
VC-Multimedia
SA,
to
transfer
to the
latest
all
trading,
distribution
and
exhibition
and
broadcast
of a
group of
cinematographic
and
audiovisual
works
(film,
mini-series,
documentaries)
that the
latter
intends
to
produce
within 5
years.
(art.
30°) |
|
|
|
Page
12 |
|
PAGE
TWELVE
40. The
defendant
VC
produced
the
documentary
Maddie ,
The
Truth of
the Lie
,
produced
by
Carlos
Coelho
da Silva
, which
is an
adaptation
of the
book
written
by the
defendant
GA. This
documentary,
in DVD
format,
is
appended
to the
files. (al.AF)
41.At
the
beginning
of the
documentary,
the
defendant
Gonçalo
Amaral
states
the
following:
My name
is
Gonçalo
Amaral
and I
have
been an
inspector
for the
Judiciary
Police
for 27
years. I
co-ordinated
the
investigation
into the
disappearance
of
Madeleine
McCann
on the
3rd of
May
2007.
During
the next
50
minutes
I will
prove
that the
child
was not
abducted
and that
she died
in the
holiday
apartment
in Praia
da Luz.
Discover
all the
truth
about
what
happened
that
day. A
death
that
many
want to
cover
up. (al.AG)
42. At
the end
of the
documentary,
the
defendant
Gonçalo
Amaral
states
the
following:
What I
know
tells me
that
Madeleine
McCann
died in
apartment
5A on
the 3rd
of May
2007. I
am
certain
that
this
truth
one day
will be
ascertained.
The
investigation
was
brutally
interrupted
and
there
was a
hasty
political
archival.
Some are
hiding
the
truth
but,
sooner
or
later,
the
varnish
will
crack
and
revelations
will
surface.
Only
then
will
there be
justice
for
Madeleine
McCann.
(al.AH)
43. The
defendant,
Valentin
de
Carvalho–filmes
Audiovisuais,
SA
concludes
the
documentary
with
this
statement
:
The
mystery
remains,
the
former
inspector
believes
that one
day the
truth
will be
known.
For now,
we are
aware
only
that on
the 3rd
May of
2007,
Madeleine
McCann
disappeared
in Praia
da Luz.
She was
3 years
old and
she was
a happy
child.
(al.AL)
44. In
the
sequence
of
deliberations
on the
October
27,
2008, it
was
decided
to
increase
the
share
capital
of the
defendant
Valentim
de
Carvalho-Filmes
Audiovisuais
SA,
an
increase
that was
registered
on
September
28,
2009,
the
capital
of the
company
being
held in
the
proportion
of 60%
by
Estudios-Valentim
de
Carvalho-Gravações
e
Audiovisuais,
SA
and 40%
by the
Fundo
de
Investimento
para o
Cinema e
Audiovisual.
(art.29°)
45. On
April
13, 2009
and May
12, 2009
the
documentary
was
broadcast
by the
defendant
TVI-Televisao
Independente
SA.
(al.AJ)
46.
Before
the
documentary’s
broadcast,
the
defendant
TVI-Televisao
Independente
SA
issued
this
statement
:
The
following
program
is a
documentary
based on
the book
by
Gonçalo
Amaral,
former
PJ
Inspector
who
investigated
the
disappearance
of
Madeleine
McCann
in the
Algarve.
His
version
of
events
is
denied
by
Maddie’s
parents
who
continue
to
insist
that it
was an
abduction.
The
criminal
investigation
carried
out by
the
Portuguese
authorities
ended
with the
shelving
of the
files, a
decision
contested
by
Gonçalo
Amaral.
Rather
than
finding
those
responsible,
a task
for the
justice
system,
the
broadcast
of this
documentary
aims at
shedding
some
light
and
provide
facts
that
might
help
understanding
a case
that has
remained
a
mystery
for
almost
two
years.
(al.AL)
47. At
least
two
million
and two
hundred
thousand
people
watched
the
program
broadcast
on TVI
13.04.2009.
(art.
10°).
48. The
defendant
Goncalo
Amaral
gave to
the
newspaper
Correio
da Manha
an
interview,
conducted
by the
journalists
Eduardo
Damaso
and
Henrique
Machado
and
published
on the
24th
July
2008.
Its
contents
is
totally
reproduced
and
announced
on the
front
page,
having
been
attributed
to GA in
particular
the
following
statements
:
CdM :
As the
case
investigator,
what is
your
thesis?
GA : The
little
girl
died in
the
apartment.
Everything
is in
the
book,
which is
faithful
to the
investigation
until
September
(2007).
It
reflects
the
understanding
of the
Portuguese
and
English
police
forces
and of
the
Public
Ministry.
For all
of us,
until
then,
the
concealment
of the
cadaver,
the
simulation
of
abduction
and the
exposure
or
abandonment
were
proved.
CdM :
What led
you to
indict
the
McCanns
over all
of those
crimes?
GA :
It
all
started
with the
parents'
pressure
to an
abduction
theory.
And the
abduction
is based
on two
facts:
one is
Jane
Tanner's
testimony
that
says she
saw a
man
passing
in front
of the
apartment,
carrying
a child
(on his
arms);
the
other is
the
bedroom
window,
which,
according
to Kate,
was open
when it
should
have
been
closed.
It was
proved
that
none of
that
happened.
CdM :
How did
you
prove
that ?
GA :
Jane
Tanner
is not
credible:
she
identifies
and
recognises
different
people.
She
starts
with
Murat,
then
someone
else is
mentioned,
according
to the
drawing
done by
a
witness,
and she
says
that is
that
person,
somebody
completely
different
from
Robert
Murat.
CdM :
Did Jane
Tanner's
testimony
point
towards
the
abduction
thesis ?
GA :
In
order to
follow
that
direction,
it would
have
been
necessary
to give
her
credit:
there
was no
other
abduction
clue.
And the
window
of the
bedroom
where
Maddie
and her
siblings
slept is
a vital
issue.
It leads
to
simulation.
In other
words,
was it
open or
not when
Jane
says she
saw the
man
carrying
the
child?
The
little
girl’s
mother,
Kate, is
the only
person
that
mentions
the open
window.
CdM :
Does
this
deconstruct
the
abduction
thesis ?
|
|
|
|
Page 13 |
|
PAGE
THIRTEEN
GA :
There
lies the
solution.
The door
closed
or not
is a
strong
clue for
simulation.
And why
does one
simulate
abduction,
rather
than
simply
saying
that the
child
has
disappeared?
She
could
have
opened
the door
and
left…
CdM :
Do
Kate’s
fingerprints
reinforce
the
simulation
theory?
GA :
They are
the only
fingerprints
on the
window.
And in a
position
of
opening
the
window.(…)
CdM :
What do
you
think
happened
to the
body?
GA :
Everything
indicated
that the
body,
after
having
been at
a
certain
location,
was
moved
into
another
location
by car,
some
twenty
days
later.
With the
residues
that
were
found
inside
the car,
the
little
girl had
to have
been
transported
inside
it.
CdM :
How can
you
state
that?
GA : Due
to the
type of
fluid,
we
policemen,
experts,
say that
the
cadaver
was
frozen
or
preserved
in the
cold and
when
placed
into the
car
boot,
with the
heat
there
was
then,
part of
the ice
melted.
On a
curb,
for
example,
something
fell on
the
boot's
right
side,
above
the
wheel.
It may
be said
that
this is
speculation,
but it's
the only
way to
explain
what
happened
there.
CdM :
If the
body was
hidden
in the
beach
area
first,
was it
always
out of
reach
for the
searches?
GA :
The
beach
was
searched
at a
time
when it
is not
known
whether
the body
was
still
there.
Dogs
were
used,
but
sniffer
dogs
have
limitations,
like the
salted
water
for
example.
Later
on, it
might
have
been
removed.
(al.Z)
49. The
defendant
Gonçalo
Amaral
issued
the
above
mentioned
affirmations.
(art.1°)
50. The
defendant
Gonçalo
Amaral
gave
interviews
to the
defendant
TVI-Televisao
Independente
SA
on the
16.05.
and the
27.05.2009.
(al.M)
51. By
the end
of April
2009,
the
documentary
went on
sale on
DVD with
the
title
Madeleine
the
Truth of
The Lie”
- A
Powerful
Documentary
based on
the best
seller “
The
Truth of
the Lie”
by
Gonçalo
Amaral.
(al.AN)
52. The
above
mentioned
DVD was
edited
and the
edited
copies
were
traded
by
Valentim
de
Carvalho
Multimédia
SA
through
agreement
with
Presselivre,
Imprensa
Livre SA.
(art.8°)
53.
75.000
copies
of the
DVD were
distributed
for
sale. (al.AO)
54.
63.369
copies
of the
DVD were
not
sold,
having
subsequently
been
destroyed.
(art.18°)
55. On
the
video
cover
the word
“confidential”
is
written
in red.
(al.AP)
56. The
DVD was
sold by
Presselivre,
Imprensa
Livre SA
as an
insert
with the
newspaper
owned by
the same
company
Correio
da Manha
at the
price of
€ 6,95
(six
euros
and
ninety
five
cents,
VAT
included).
(art.6°)
57. To
date,
the
documentary
was only
once
reproduced
to be
edited, published
and
commercialised
in
Portugal
in video
format,
DVD
referred
to in
point
42.
(art.31°)
58.
Reproduction
and
editing
of the
video
documentary
format
was
authorised
by
Valentim
de
Carvalho
Multimedia
, S.A.
to
Presselivre
company
, Free
Press ,
S.A. ,
which
owns the
newspaper
Correio
da Manha,
according
to the
agreement
between
both
established.
(art.32°)
59.
Under
which
(contract),
the DVD,
its
cover
and
packaging
would
be, and
were,
made
by
account,
order
and
under
the
responsibility
of
Presselivre,
to be
distributed
and
commercialised
jointly
with the
newspaper
Correio
da Manha.
(art.33°)
60. And
the
whole
process
of
registration
and
classification
of the
video
(DVD)
edition
of the
documentary
with the
IGAC (28)
would
be, and
it was,
developed
by
VCMultimédia,
being
Presselivre
that
would
support
the
costs,
and it
did. (
art.
34°)
61. The
DVD of
the
documentary
was
distributed
for sale
together
with the
distribution
for sale
of the
newspaper
Correio
da Manha.
(art.35°)
62. The
defendant
Gonçalo
Amaral
earned
by
selling
the DVD,
in 2008,
the
amount
of
€40.000.
(art.7°)
63. The
documentary
was
reproduced,
including
subtitled
in
English
by
others
who
spread
it on
the Web
without
the
consent
and
against
the will
of the
defendant
VC-Valentim
de
Carvalho-Filmes,
Audiovisuais,
SA.
(art.36°)
64. This
illicit
diffusion
undermines
not only
the
rights
held by
the
defendant
VC-Valentim
de
Carvalho-
Movies,
Audiovisual,
SA
on the
documentary,
but also
its
commercial
exploitation,
as any
citizen
can
access
the
documentary
with
just one
"click".
(art.37°)
65. The
Republic
Prosecutor
Office
in
Portimao
determined
the
creation
of a
digital
copy of
the
investigation
process,
with the
exception
of parts
subject
to
absolute
secrecy,
and its
delivery,
upon
request,
to
several
people,
including
journalists,
which
occurred.
(al.AX) |
|
|
|
Page
14 |
|
PAGE
FOURTEEN
66. The
content
of such
a
digital
copy was
made
public,
including
through
the Web,
having
been
publicly
and
universally
read,
commented
and
discussed.
(al.AZ)
67. The
claimants
Kate and
Gerald
McCann
have
alerted
the
press
about
the
disappearance
of their
daughter.
(al.BA)
68. The
claimants
KMC and
GMC gave
an
interview
to the
North-American
TV
program
Oprah
hosted
by Oprah
Winfrey,
revealing
the
existence
of new
witnesses,
reconstructions
(1)
and
e-fits.
(al.BB)
69. The
Oprah
interview
was
worldly
broadcast
by
signals
available
through
satellite
and
cable
networks.
(al.BC)
70. This
interview
for the
Oprah
program
was
broadcast
in
Portugal
by SIC,
on the
9.05 and
12.05.2009.
(al.BD)
71. The
claimants
KMC and
GMC, in
collaboration
with the
British
television
station
Channel
4,
made a
documentary
about
the
disappearance
of their
daughter,
entitled
Still
missing
Madeleine,
lasting
60 '. (al.BE)
72. On
15.04.2009,
the
defendant
TVI-Televisao
Independente,
SA
signed a
license
preliminary
agreement
for
broadcasting,
exclusively
in
Portugal,
the
documentary
SMM
for
35,000
€. (al.BF)
73. The
claimants
KMC and
GMC
asked
that the
license
for
broadcasting
the
documentary
SMM
would
not be
attributed
to the
defendant
TVI-Televisao
Independente,
SA.
(al.BG)
74. The
documentary
SMM,
translated
Maddie,
Two
Years of
Anguish,
was
broadcast
by SIC
on
12.05.2009.
(al.BH)
75. On
17.10.2007,
Clarence
Mitchell,
spokesman
for KMC
and GMC
said
they
were
realistic
enough
to admit
that
their
daughter
would
probably
be dead.
(al.BI)
76.
There
was a
huge
public
interest
in
Portugal
and
throughout
the
world,
about
the
events
surrounding
the
disappearance
of
Madeleine
McCann,
the
investigations
carried
out to
find her
and to
determine
what in
fact
happened,
their
evolution
and
vicissitudes,
among
which
the
constitution
of the
claimants
Kate and
Gerald
McCann
as
suspects
in the
investigation
process
and the
removal
of the
defendant
Goncalo
Amaral
from
investigations
that
were
developed
under
his
coordination.
(al.BJ)
77. The
claimants
Kate and
Gerald
McCann
hired,
through
Madeleine's
Fund, PR
firms
and
spokesmen.
(al.BL)
78. The
so-called
Maddie
case
has been
deeply
treated
in the
Portuguese
society
and in
foreign
countries,
either
by media
organs
or in
books,
like the
works of
Paulo
Pereira
Cristovao,
Manuel
Catarino
and
Hernani
Carvalho.
(art.
24°)
79. The
so-called
Maddie
case
was
commented
by Dr.
Francisco
Moita
Flores,
former
Inspector,
writer,
and
criminologist,
as a
columnist
in
various
media.
(art.
25°)
80. The
facts
related
to the
criminal
investigation
of
Madeleine
McCann's
disappearance
that the
defendant
Goncalo
Amaral
refers
to
in the
book, in
an
interview
with the
newspaper
Correio
da Manha
and in
the
documentary
are
mostly
facts
that
occurred
and are
documented
in this
investigation.
(art.
27° et
28°)
81. As a
result
of the
defendant
Goncalo
Amaral's
statements
in the
book,
the
documentary
and
interview
with the
CdM, the
claimants
Kate and
Gerald
McCann
felt
anger,
despair,
anguish,
worry,
and were
suffering
insomnia
and lack
of
appetite
(art.
13°)
82. The
same
claimants
feel
unease
because
they are
considered
by
people
who
believe
in
Goncalo
Amaral's
thesis
about
the
disappearance
of
Madeleine
McCann,
as
responsible
for the
concealment
of the
body and
as
authors
of the
simulation
of her
abduction.
(art.13°)
82. The
same
claimants
feel
unease
because
they are
considered
by
people
who
believe
in
Goncalo
Amaral's
thesis
about
the
disappearance
of
Madeleine
McCann,
as
responsible
for the
concealment
of the
body and
as
authors
of the
simulation
of her
abduction.
(art.14°)
83. The
claimants
Kate and
Gerald
McCann
feel,
with
deep
concern,
the need
to keep
their
young
children
far from
the
thesis
referred
to
above.
(art.15°)
84. Sean
and
Amelie
McCann
entered
the
school
in
August
2010
without
knowledge
of the
defendant's
thesis
referred
to
above.
(art.17°)
3. Under
art.
635-4
(30)
and
639-1 (31) of
the CPC,
the
matter
of the
appeal
is
delimited
by the
appellant’s
conclusions.
The
question
subject
to
decision
is
essentially
centred
on the
evaluation
of the
alleged
illicit
act and
the 1st
defendant’s
(here
appellant)
responsibility
ensuing
from it
in the
publication,
by the
2nd and
the 3rd
defendants,
here
equally
appellants,
of the
works at
stake. |
|
|
|
Page
15 |
|
PAGE
FIFTEEN
In terms
of
personality
rights (32),
article
26-1 (33)
of the
CRP
states
that the
rights
to a
person’s
good
name and
reputation
are
recognised,
as well
as
protection
of the
intimacy
of
private
and
family
life..
The same
fundamental
law
protects
with
equal
dignity
freedom
of
expression,
stating
in
article
37-1
(1)
that
everyone
has the
right to
freely
express
and
disclose
their
thought
through
speech,
via
image or
by any
other
means,
as well
as the
right to
inform,
to look
for
information
and to
be
informed
without
hindrance
or
discrimination.
Freedom
of the
press is
established
under
article
38-2,
(2)
concerning
freedom
of
expression
and
creativity
for
journalists
and
collaborators.
Article
18-2 (34)
establishes,
in the
event of
a
conflict
between
fundamental
rights,
that
legal
restrictions
on these
rights
are
limited
to the
need of
preserving
other
constitutionally
protected
rights
or
interests.
For its
part,
the
ordinary
law
enshrines
in
article
70 of
the CC
(14),
as a
principle,
that the
law
protects
individuals
against
unlawful
offence
or
threat
of
offence
to their
physical
or moral
integrity,
while
according
to
article
80 of
the CC (3)
everyone
must
maintain
discretion
about
someone
else’s
intimacy
of
private
life.
In case
of
conflict
of equal
rights
or of
the same
species,
the
holders
of these
rights
must, in
terms of
article
335-1
(10),
assign
to the
extent
necessary
for all
rights
to take
effect
without
major
damage
for any
of them.
Article
335-2 (10)
states
that,
all
rights
being
uneven
or of
different
species,
prevails
the one
considered
higher
Thus, as
the
dominant
jurisprudence
understands
:
One of
the
limitations
to
freedom
of
information,
which
therefore
is not
an
absolute
right,
is the
preservation
of the
right to
a good
name.
Journalists,
media,
are
bound by
ethical,
professional
duties,
rigour
and
objectivity.
It is up
to the
media's
right,
social
function,
to
broadcast
news and
express
opinions,
critical
or not,
the
iimportance
being
that
they do
so with
respect
for the
truth
and the
intangible
rights
of
others,
as
personality
rights .
The
right to
honour,
in a
broader
sense,
and the
right to
freedom
of press
and
opinion
are
traditional
occasions
of
conflict.
Criticism
is
limited
by the
rights
of the
targeted
person,
but does
not stop
being
legitimate
when it
is
trenchant
and
sharp
but not
offensive,
because
that is
often
the
style of
writers.
Criticising
implies
banning,
censorship
conveyed
by the
media
only
stops
being
legitimate
as a
manifestation
of
individual
freedom
when it
expresses
objective
anti-juridicity,
violating
the most
personal
rights
and
affecting,
more or
less
lastingly
according
to
people's
memory,
values
which
must be
preserved
as the
rights
here at
stake to
honour,
good
name and
social
reputation.
(ruling
of the
STJ (Supreme
Court of
Justice)
dated
20/01/2010,
www.dgsi.pt)
(35)
In the
case
before
us,
besides
the
reporting
of the
facts
that are
part of
the
investigation
into the
disappearance
of the
minor
Madeleine
McCann,
the
analysis
of the
book and
other
published
matter
shows
that the
now
first
appellant
sustains
the
thesis
that
there
was no
kidnapping,
but
accidental
death of
the
child,
followed
by a
cover-up
-
concealment
of the
body and
kidnapping
simulation
– by the
applicants
Gerald
and Kate
McCann,
now the
respondent
party .
It
results
from the
above-mentioned
publication
that
evidence
elements
and
clues it
reports
to are
essentially
those
referred
and
documented
in the
respective
criminal
investigation.
Notwithstanding,
the
exposed
thesis,
according
to which
the
minor
died
accidentally
and the
parents
hid the
fact,
spreading
the
kidnapping
hypothesis
in order
to
deceive,
is not
new,
since it
is also
in the
report
referred
to at n°
9 of the
proven
facts,
having
determined
the
constitution
of the
respondent
party as
arguidos
and
having
been
made
public
by the
media
after
the
digitalisation
of the
investigation
files
was
provided
( n°s 65
and 66
of the
proven
facts) .
As
determined
by the
appeal
ruling
heard in
this
section
regarding
the
appended
injunction,
the
first
appellant
intended
through
(his
book) to
outline
his
vision
of the
facts,
once the
institution
to which
he
belonged
(the PJ)
did not
allow
him, as
a
professional
police
officer
in a
criminal
investigation,
to
respond
to
attacks
against
its
expertise
and
honour.
We must
therefore
consider
the
publication
of the
book as
reflecting
legitimately
the
practice
of the
right
to
opinion.
And it
results
from
what has
been
proven
that,
besides
the
facts at
stake
were
abundantly
engraved
in the
investigation
and even
made
public
at the
instigation
of the
Republic
Attorney
General,
the
respondents
are the
ones
who,
taking
advantage
of an
easy
access,
multiplied
interviews
and
interventions
in the
national
and
international
media,
so that
the
conclusion
is they
themselves
voluntarily
limited
their
rights
to
discretion
and
intimacy
of
private
life.
By this
kind of
proceeding,
they
opened
the way
for
anyone
to
equally
express
their
opinion
on the
case,
contradicting
their
theory –
exercising,
doing
so, a
legitimate
and
constitutionally
sanctioned
right to
opinion
and
freedom
of
expression
of their
thoughts. |
|
|
|
Page
16 |
PAGE
SIXTEEN
Moreover,
we do
not see
how the
right of
the
respondents
to
enjoy,
after
their
constitution
as
arguidos,
the
guarantees
of a
criminal
trial –
including
the
right to
a fair
investigation
and the
right to
liberty
and
security
- could
be
affected
by the
content
of a
book
that
essentially
describes
and
interprets
facts
that are
part of
an
investigation
the
contents
of which
have
been
made
public.
Nothing
prevents
that,
although
they
were not
considered
sufficient
to
elicit
criminal
charges,
such
facts
are
subject
to
various
assessments,
especially
in a
literary
kind of
work.
Therefore,
and as
rights
are
enshrined
namely
in
articles
37 (1)
and 38 (2)
of the
Constitution,
the
publication
in
question
has to
be
considered
legitimate. .
The
appealed
decision,
however,
reckons
that the
first
(here)
appellant,
Gonçalo
Amaral,
because
he
coordinated
the
criminal
investigation
into the
disappearance
of
Madeleine
McCann
until
2/10/2007,
remained,
even
after
his
retirement
on
1/07/2008,
subject
to the
duties
of
silence
and
reserve,
regularly
imposed
on
officials
of the
Judicial
Police
in
activity.
Under
such
terms,
and
despite
the
personal
reasons
given in
the
prologue
of the
book,
the
appellant,
in case
of
collision
with the
rights
to good
name and
reputation
of the
respondents,
would
not
enjoy
the full
and
complete
freedom
of
expression
concerning
the
investigation's
conclusions,
his
conduct
being
deemed
unlawful
under
Article
484 of
the CC. (8)
From
what
has been
said
above on
this
subject,
it is
clear
that the
expounded
arguments
are not
worth
considering.
Indeed,
irrespective
of the
reasons
given by
the
appellant
for
publication,
it is
hardly
understandable
that a
civil
servant,
even
more a
retired
one,
should
carry on
his
silence
and
reserve
duties,
thus
limiting
the
exercise
of his
right to
opinion
as to
the
interpretation
of facts
already
made
public
by the
judicial
authority
and
widely
discussed
(actually
largely
at the
instigation
of the
protagonists
themselves)
in
national
and
international
media.
In the
absence
of the
appealed
decision's
first
presupposition,
it must
be
concluded,
against
it, to
the lack
of
eligibility
of any
of the
respondent
party's
demands
-
remaining
without
effect
the
re-assessment
of the
material
facts,
secondarily
requested.
Given
what has
been
discussed
above,
it is
judged
appropriate,
in
agreement
with
both
appeals,
to
revoke
the
decision
on
appeal
and,
considering
the
action
against
them
unjustified,
to
acquit
the
defendants-appellants
of all
the
requests.
Costs
for both
instances
are to
be paid
by the
claimants-
respondent
party.
19.04.2016
|
|
|
|
|
NOTES |
|
(1)
Art 37 of
the CRP
(Portuguese
Republic
Constitution)
: Freedom of
expression
and
information
|
|
1. Everyone
has the
right to
freely
express and
disseminate
his thoughts
by words,
images or by
any other
means, as
well as the
right to
inform, to
seek
information
and be
informed
without
hindrance or
discrimination.
2. The
exercise of
these rights
can not be
prevented or
restricted
by any type
or form of
censorship.
3. Offences
committed in
the exercise
of these
rights are
subject to
the general
principles
of criminal
law or
breach of
administrative
order, and
its
appreciation
belongs
under the
law
respectively
to the
courts of
law or to
independent
administrative
entities.
4. To all
persons,
singular or
collective,
is ensured
in
conditions
of equality
and
effectiveness,
the right of
reply and
rectification
and the
right to
compensation
for damages. |
| |
|
(2)
Art 38 of
the CRP :
Freedom of
the press
and media |
1. Freedom
of the press
is
guaranteed.
2. Freedom
of the press
implies:
a) The
freedom of
expression
and
creativity
for
journalists
and
collaborators,
as well as
the
intervention
of the first
in the
editorial
direction to
their
respective
media organ,
except for
doctrinal or
confessional
types ;
b) The right
for
journalists,
under the
law, of
access to
sources of
information
and of
protection
of their
professional
independence
and secrecy,
as well as
the right to
elect
editorial
boards ;
c) The right
to found
newspapers
and other
publications,
regardless
of
administrative
authorisation,
deposit or
pre-qualification.
3. In
general
terms, the
disclosure
of the
ownership
and funding
arrangements
of the media
organs is
required by
law.
4. The State
shall
guarantee
the freedom
and
independence
of media
from
political
and economic
power by
imposing the
speciality
principle
upon
companies
that own
general
information
media,
treating
them and
supporting
them in a
non-discriminatory
manner and
prevent
their
concentration,
in
particular
through
multiple or
crossing
participations.
5. The State
shall
guarantee
the
existence
and
operation of
a public
service of
radio and
television.
6. The
structure
and
functioning
of the media
in the
public
sector must
safeguard
its
independence
from the
Government,
the
Administration
and other
public
authorities,
and to
ensure the
possibility
of
expression
and
confrontation
of different
currents of
opinion.
7. The law
requires
that the
broadcasting
Radio
stations and
TV channels
only operate
under
license,
submitted to
public
competitive
examination |
| |
|
(3)Article 80
of the CC
(Portuguese
Civil Code)
: Reserve
right
concerning
private life |
1. Everyone
should keep
reserve on
the privacy
of someone
else's life.
2. The
reserve
extension is
defined
according to
the nature
of the event
and the
condition of
the persons. |
| |
|
(4)Article 81 :
Voluntary of
the CC
limitation
of personal
rights |
1. Any
voluntary
limitation
on the
exercise of
personal
rights is
null, if it
is contrary
to the
principles
of public
order.
2. The
voluntary
limitation,
when legal,
is always
revocable,
although
with the
obligation
to
compensate
the damage
caused to
the
legitimate
expectations
of the other
party. |
|
|
|
(5)
It might be
useful to
discriminate
between
"safety" and
"security",
two
different
notions that
are often
mixed up. |
|
"Security"
refers to
all the
elements in
place to
prevent
accidental,
thus
involuntary,
events
whereas
"safety"
refers to
malicious,
thus
voluntary
acts. For
instance the
prohibition
of using
electronic
devices when
a plane
takes off is
a security
measure,
whereas the
prohibition
of blades on
board is a
safety one. |
| |
|
(6) Art. 483 of the Civil Code - General principle |
|
1. Any
person who ,
intentionally
or
recklessly ,
unlawfully
violates the
rights of
others or
any legal
provision
intended to
protect
others'
interests is
obliged to
compensate
the injured
party for
damages
resulting
from the
breach.
2. Paying
damages,
regardless
of fault, is
only
required in
the cases
specified by
law. |
| |
|
(7)
Art. 10
on ECHR
(European
Convention
on Human
Rights) –
Freedom of
expression |
|
1. Everyone
has the
right to
freedom of
expression.
This right
shall
include
freedom to
hold
opinions and
to receive
and impart
information
and ideas
without
interference
by public
authority
and
regardless
of
frontiers.
This article
shall not
prevent
States from
requiring
the
licensing of
broadcasting,
television
or cinema
enterprises.
2. The
exercise of
these
freedoms,
since it
carries with
it duties
and
responsibilities,
may be
subject to
such
formalities,
conditions,
restrictions
or penalties
as are
prescribed
by law and
are
necessary in
a democratic
society, in
the
interests of
national
security,
territorial
integrity or
public
safety, for
the
prevention
of disorder
or crime,
for the
protection
of health or
morals, for
the
protection
of the
reputation
or rights of
others, for
preventing
the
disclosure
of
information
received in
confidence,
or for
maintaining
the
authority
and
impartiality
of the
judiciary.
|
| |
|
(8) Art.
484 of the
CC - Offense
to credit or
good name
|
|
Who affirms
or spreads a
fact capable
of harming
the credit
or good name
of any
person,
individual
or
collective,
is liable
for damages. |
| |
|
(9) Art.
334 of the
CC - Abuse
of rights |
|
The exercise
of a right
is
illegitimate,
when the
holder
obviously
exceed the
limits
imposed by
good faith,
habits and
customs and
the social
or economic
purpose of
that right |
| |
|
(10) Art.
335 of the
CC - Rights'
collision |
|
1. If there
is a
collision of
rights,
equal or of
the same
kind,
holders
should give
in to the
extent
necessary
for all
right to
produce
their
effects
without
further
detriment to
either
party.
2. If the
rights are
unequal or
of different
kind the one
that must be
considered
superior
prevails. |
| |
|
(11) Art.
615 –
Grounds for
judgement's
invalidity |
|
1. The
judgement is
null when :
a) it does
not contain
the
signature of
the judge.
b) it does
not specify
the
fundamentals
of fact and
law that
justify the
decision.
c) the
fundamentals
are in
opposition
with the
decision or
some
ambiguity or
abstruseness
makes the
decision
unintelligible.
d) The judge
does not
come down
for matters
that he
should
appreciate
or knows of
issues that
he could not
have taken
notice.
e) The judge
condemns in
superior
quantity or
on different
object
compared to
what has
been
claimed.
f) The
determination
of
responsibility
for the
costs, in
the terms of
article
659-4, is
omitted.
2. The
omission
referred to
in 1.a) is
supplemented
unofficially
or at the
request of
either
party, when
it is
possible to
collect the
signature of
the judge
who issued
the
sentence,
the judge
having to
declare in
the trial
the date on
which he
signed.
3.When the
document is
electronically
signed,
there is no
need to make
the
declaration
provided in
2.
4. Nullities
mentioned in
1.b) to e)
may only be
invoked
before the
Court that
issued the
judgement if
this one
admits no
ordinary
appeal, the
appeal being
able,
otherwise,
to have any
of these
nullities as
fundamental.
|
| |
|
(12) Art.
412 of the
CPC - Facts
that do not
require
either proof
or
allegation |
|
1 -
Well-known
facts don't
require
evidence or
allegation,
they, facts
of general
knowledge
having to be
considered
as such. |
| |
|
(13) Art. 5
of the CPC -
Declarative
Action |
|
1 - Without
prejudice to
the
following
paragraphs,
the Civil
Procedure
Code,
approved in
annex to
this law, is
immediately
applicable
to pending
declarative
actions.
2. The rules
on
determining
the form of
the
assessment
procedure
shall apply
only to
actions
brought
after the
entry into
force of the
CPC,
approved in
annex to
this law.
3 - The
rules
governing
the
procedural
acts of the
phase of the
pleadings
shall not
apply to
actions
pending the
entry into
force of the
CPC,
approved in
annex to
this law.
4 - In the
actions
that, at the
date of the
entry into
force of
this law,
are in the
stage of
pleadings,
the parties
should,
completed
this stage,
be notified
to, within
15 days,
submit
evidentiary
requirements
or amend
those
presented,
followed by
other terms
provided for
in the CPC,
adopted in
annex to
this law.
5 - In the
pending
actions in
which, at
the date of
entry into
force of
this law,
the
intervention
of the
collective
court has
already be
allowed, the
judgment is
made by the
court, in
the terms at
the date of
admission.
6 - Until
the entry
into force
of the
Judiciary
System
Organization
Act, i
circle judge
the
responsibility
for
preparation
and trial of
actions of
value
greater than
the scope of
the Appeal
Court after
the entry
into force
of the CPC,
approved in
annex to
this law,
except in
cases where
the CPC,
approved by
dispatch n°.
44,129, of
December 28,
1961,
excluded the
intervention
of the
collective
court. |
| |
|
(14) Art. 70
of the CC -
General
Protection
of
personality |
|
2.
Regardless
of liability
that may
arise , a
threatened
or offended
person may
require
measures
appropriate
to the
circumstances,
in order to
prevent the
consummation
of the
threat or to
soften the
effects of
the offense
already
committed. |
| |
|
(15) Art. 158
of the CPC -
Territorial
scope for
the practice
of
secretariat
duties |
|
1. The
officials of
the
secretariats
of the
Supreme
Court of
Justice, the
Court of
Appeal and
any other
court can
directly
perform the
acts
assigned to
them
throughout
the
jurisdiction
of the
respective
court area
when it is
greater than
the area
jurisdiction
in which the
court is
inserted.
2 - In the
cases
provided for
in the rules
on judicial
organization,
competence
for the
practice of
secretariat
duties may
cover the
area from
other
judicial
districts.
|
| |
|
(16)
I couldn't
find it
there,
though... |
|
|
|
(17)
Art. 42 of
the CRP-
Freedom of
cultural
originality
1.
Intellectual,
artistic and
scientific
originality
shall not be
restricted.
2. This
freedom
includes the
right to
originate,
produce and
disseminate
scientific,
literary or
artistic
works, and
includes
legal
protection
for
copyright. |
|
|
|
(18) Art.19
of the UDHR
(Universal
Declaration
of Human
Rights) |
|
Everyone has
the right to
freedom of
opinion and
expression;
this right
includes
freedom to
hold
opinions
without
interference
and to seek,
receive and
impart
information
and ideas
through any
media and
regardless
of
frontiers. |
| |
|
(19) Article
150 of the CCP - From
the
reconstruction
of the facts
- pre
-conditions
and
procedure |
|
1. When the
need arises
to determine
whether the
facts could
have taken
place in a
certain way
, it is
admissible
to conduct
their
reconstitution.
This is to
replicate as
closely as
possible,
the
conditions
under which
the incident
occurred or
are alleged
to have
occurred ,
and to
repeat the
way they are
made .
2. The
decree
ordering the
reconstruction
of the facts
must contain
a brief
indication
of the
objective
pursued ,
the day ,
time and
place will
unfold the
reconstitution
procedure
and how it
will take
place ,
using
possibly to
audio -
visual
means. The
Order may
appoint an
expert for
the
execution of
specific
operations .
3. All
advertising
about this
initiative
should be
avoided
wherever
possible. |
| |
|
(20)
The fact
that,
according to
PF, a child,
possibly
Madeleine,
had cried
during more
than an hour
on May 1st
night. |
| |
|
(21)
"Other
crimes" here
designates
"crimes that
are not of
neglect". |
| |
|
(22)
This is the
preliminary
DNA analysis
by the FSS
of the
samples
collected in
the car
hired by the
McCanns. |
| |
|
(23)
It is show
off to make
believe that
things
function
while they
don't.
|
| |
|
(24)
One could
imagine that
GA is
referring to
the
unfortunate
words (the
British
police was
following
the MC
instead of
maintaining
a critical
distance)
that
motivated,
matter of
diplomacy,
his
dismissal of
the case by
the national
director of
the PJ,
Alípio
Ribeiro, but
no, he
evokes the
suggestion
of
precipitate
arguido
status made
by the
latter to
the
journalist
of the daily
Público (
02/02/2008
), 4 months
later. |
| |
|
(25)
See (24) |
| |
|
(26)
Please note
that the
McCanns,
from the
first day,
were
"victims"
and not
"witnesses".
Their status
has moved
from
"victim" to
"(by lawyer)
assisted
witness" . |
| |
|
(27)
GA refers to
meetings
with British
officers,
who had come
to help the
PJ and/or
support the
McCanns, one
of them
being Stuart
Prior,
Detective
Superintendent
of the
Leicestershire
Constabulary
(now
Police),
whom GA
describes as
particularly
tense while
the
interrogations
during which
the McCanns
would be
made
arguidos
were
imminent. |
| |
|
(28)
Inspecção-Geral
das
Actividades
Culturais
(General
Inspection
of Cultural
Activities)
https://www.igac.pt/apresentacao |
| |
|
(29)
Note that
what the
claimants
did was a
reconstruction,
and not a
reconstitution,
quite a
different
process,
previewed
and defined
in the
Portuguese
CPC (and
more
generally
performed in
any
Inquisitorial
System),
which aims
to
understand
how the
event
happened.
What the
Public
Ministry
requested
from the
Tapas 9 was
a
reconstitution,
it could by
no way use
actors, as
its purpose
wasn't to
jog memories
as the
Common Law
(or
Adversarial
System)
reconstruction
does. |
| |
|
(30)
Art. 635 of
the CPC –
Subjective
and
objective
delimitation
of the
appeal |
|
4. In the
conclusions
of the
allegation,
the
appellant
may
restrict,
expressly or
tacitly, the
initial
object of
the appeal. |
| |
|
(31)
Art. 639 of
the CPC –
Burden of
claim and
conclusions
wording |
|
1. The
appellant
shall submit
his
allegation
and
conclude, in
summary
form, by
stating the
grounds for
requesting
the
amendment or
annulment of
the
decision. |
|
|
|
(32)
"Personality"
refers to
the
individual,
i.e the
combination
of a
person's
aspects that
distinguish
them from
all
individuals
of the past,
the present
and the
future. |
| |
|
(33)
Art. 26 of
the CRP -
Other
personal
rights |
|
1. Everyone
is
recognised
as having
the right to
his or her
personal
identity,
civil
capacity,
citizenship,
good name
and
reputation,
and
likeness,
the right to
speak out
and the
right to the
protection
of the
privacy of
his or her
personal and
family life.
|
|
|
|
(34)
Art. 18 of
the CRP -
Legal
application |
|
2. Rights,
freedoms and
guarantees
may be
restricted
by law in
only those
cases
expressly
provided for
in this
Constitution;
restrictions
shall be
limited to
the extent
necessary to
safeguard
other rights
or interests
protected by
this
Constitution.
|
|
|
|
(35)
The exact
link is |
|
|
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/0d1d7e33cd681781802576b100506eca?OpenDocument
This ruling
of the
Supreme
Court of
Justice is
referred
more than
one time in
this appeal
judgement
and is worth
reading
since
freedom of
opinion and
right to
good name
are
involved. A,
a
journalist,
sued B for
defamation,
demanding a
symbolic 1€.
B riposted
demanding €2.500 plus
interests
for damages
caused by A
suing him (B
would give
the sum to
charity).
The first
instance
ruled in
favour of B.
A appealed
and won. B
went to the SCJ and lost
again.
The
fore-mentioned
extract of
the ruling's
is followed
by this note
that refers
to
formulations
of the ECHR
concerning
ruling
involving
Portugal :
""Freedom
of
expression
constitutes
one of the
essential
foundations
of a
democratic
society and
one of the
basic
conditions
for its
progress and
the
development
of everyone.
Except for
the reserve
expressed in
par. 2,
freedom of
expression
is
applicable
not only to
'information'
or 'ideas'
welcomed
with favour
or regarded
as
inoffensive
or
indifferent,
but also to
those that
aggress,
shock or
disturb. It
is required
to be so by
pluralism,
tolerance
and
open-mindedness
without
which there
is no
'democratic
society'. As
stipulated
in Article
10, this
freedom is
subject to
exceptions
which must,
however, be
interpreted
restrictively,
the need for
any
restriction
having to be
demonstrated
convincingly."
"These
principles
are of
particular
importance
for the
press. If
this one
should not
exceed the
limits laid
down in,
inter alia,
'of somebody
else's
reputation
protection',
it is its
mission to
provide
information
and ideas on
political
issues and
on other
topics of
general
interest.
The limits
of
permissible
criticism
are wider
with regard
to a
politician,
acting in
his capacity
as a public
character,
than to a
simple
citizen." |
|
|
|
|
|
 |
|
