15 - JAN 21 - Éléments de preuve retenus

No factual statement can ever be beyond doubt (…) It is this fragility that makes deception so very easy up to a point, and so tempting. It never comes into a conflict with reason, because things could indeed have been as the liar maintains they were. Lies are often much more plausible, more appealing to reason, than reality, since the liar has the great advantage of knowing beforehand what the audience wishes or expects to hear. He has prepared his story for public consumption with a careful eye to making it credible, whereas reality has the disconcerting habit of confronting us with the unexpected, for which we were not prepared.

Hannah Arendt - Crises of the Republic

On trouvera ici des documents liés à l'action pour dommages et intérêts entreprise par la famille MC (dont Madeleine) contre Gonçalo Amaral, la maison d'édition de son livre (Guerra&Paz), la société qui produisit le documentaire inspiré par le livre et en distribua le DVD (VC Filmes), la chaîne TV qui le diffusa le documentaire (TVI).

La juge remit aux avocats lors de la dernière audience, le 21 janvier 2015, un document contenant entre autres les quesitos, les questions en jeu à partir desquels la juge construirait sa sentence, afin de permettre aux avocats d'élaborer leurs alegações de direito, leurs interprétations de la loi quant aux questions retenues par la juge. Lorsque la juge reprend une question telle qu'elle l'a rédigée après compilations de tous les éléments recueillis, elle se contente de mentionner "prouvée" ou "non prouvé" (tous les avocats ont préalablement reçu la liste des questions, ici reproduites en italiques). Lorsque la juge a dû reformuler la question, celle-ci est figure intégralement ("unquoted").

Ce document, qui n'a pas vocation d'être rendu public, l'a cependant été en partie dans des circonstances quelque peu rocambolesques mais non négligeables puisque il s'est agi de mettre fin aux désinformations provenant de l'agence de presse Lusa, qui n'a pas suivi le principe fondamental et crucial de croiser les informations et vérifier les sources avant de répandre une nouvelle à l'échelle internationale.

1. Décisions sur les points retenus : pp. 1-3

2. Motivations : pp. 3-12

2.1. Documents de référence : pp. 3-5

2.2. Analyses des déclarations des témoins : pp. 5-8

2.3. Éléments de conviction positive : pp. 8-11

2.4. Éléments de conviction négative : pp. 11-12

1. Decisions on proved points

In the appended declarative actions, under the now common form of process (originally, under the ordinary form), that Kate Marie Healy McCann, Gerald Patrick McCann, Madeleine Beth McCann, Sean Michael McCann and Amelie Eve McCann move against Gonçalo de Sousa Amaral (action nr. 1454/09.5TVLSB) and against Guerra&Paz, Editores, SA, VC-Valentim de Carvalho - Filmes, Audiovisuais, SA and TVI-Televisão Independente (action 1454/09.5TVLSB-B), the decision of facts is as follows, built on the instruction basis/themes of evidence of the causes :

 

1. Gonçalo Amaral made the statements that are attributed to him under the Correio da Manhã. Proved (unquoted)

2. Proved that the defendant Guerra&Paz fixed the cover price of the book “Maddie, A Verdade da Mentira” in Portugal at € 13.33.
According to the allegation 2 : 13,80, IVA included (tax for books is 6%).

3. and 4. Proved that the defendant Gonçalo Amaral earned from the sales of the book “Maddie, A Verdade da Mentira” in 2008 and 2009 an amount of € 342.111,86.
According to the allegation 3 : GA earned from the sales in Portugal € 621.000,00.
According to the allegation 4, GA has earned from the sale of editions in foreign languages of the book not less than € 498.750,00.

5. The book was sold in Brazil by defendant Guerra e Paz, Editores SA.
Not proved (unquoted)

6. Proved that the DVD was sold for € 6,95 by Presselivre Imprensa SA together with the newspaper Correio da Manhã of which this society was the owner.
According to the allegation 6 : cover price of € 6,00.

7. Proved that the defendant Gonçalo Amaral earned € 40.000 from DVD sales in 2008. According to the allegation 7, he earned from the sale of the DVD € 112.500,00.

8. Proved that the DVD was edited and the edited copies were commercialized by Valentim de Carvalho – Filmes, Audiovisuais SA through an agreement with "Presselivre SA".
The allegation 8 uses "sold" instead of "commercialized".

9. The defendant Valentim de Carvalho – Filmes, Audiovisuais SA had already made the DVD, in an English version, available for immediate delivery via internet order.
Not proved (unquoted)

10. At least 2.200.000 people have watched the program that was broadcast on 13.4.2009. Proved (unquoted)

11. Because of the statements made by defendant Gonçalo Amaral in the book, in the documentary and in the interview to Correio da Manhã, the Polícia Judiciária stopped collecting information and investigating the disappearance of Madeleine MacCann.
Not proved (unquoted)

12. Because of the statements made by defendant Gonçalo Amaral in the book, in the documentary and in the interview to Correio da Manhã, authors Kate MacCann and Gerald MacCann are completely destroyed, from a moral, social, ethical, sentimental, family point of view, much beyond the pain that their daughter’s absence causes them.
Not proved (unquoted)

13. Proved that as a consequence of the affirmations of Gonçalo Amaral in his book, in the documentary and in the interview with Correio da Manha, the claimants felt anger, despair, anxiety, preoccupation, having insomnia and lack of appetite.
According to allegation 13, the claimants felt "permanent anguish, insomnia, lack of appetite, anxiety and irritability, preoccupation and indefinable fear".

14. Proved that the couple feel badly about being considered responsible for hiding their daughter's body and simulating her abduction by those who believe in defendant Gonçalo Amaral's thesis on the disappearance of Madeleine McCann.
According to allegation 14, the claimants feel a deep shame and an indescribable ill-being because they are considered, by most people who know the theories of defendant Gonçalo Amaral, as having responsibility in the death of their daughter, being so cowardly that they have hidden her cadaver, simulating abduction, all of this to avoid criminal accusations.

15. Proved that the couple feel with much concern the necessity to keep their younger children away from finding out about said thesis.
According to allegation 15, the claimants live under enormous daily pressure due to the need to keep their younger children away from the knowledge of defendant Gonçalo Amaral’s opinions about their moral integrity.

16. Namely because of defendant Gonçalo Amaral’s statements in the book, in the documentary and in the interview to Correio da Manhã, claimant Kate McCann is immersed in a deep and serious depression, which has already made her state publicly “I wish I was in a coma, to relieve the pain”.
Not proved (unquoted)

17. Proved that Sean and Amelie started school in August of 2010, not having learned about defendant Gonçalo Amaral's thesis yet.
According to allegation 17, Sean and Amelie MacCann will soon become aware of the conclusions that are mentioned in the process, because they will go to school.

18. 63.369 copies of the DVD were not sold, having been destroyed afterwards.  

Proved (unquoted)

19. Proved that defendant Gonçalo Amaral's retirement from the PJ started on July 1st, 2008.
According to allegation 19 the date is 1.6.2008 (lost in transcription ?)

20. Proved that the Attorney General’s Office turned public a note ("nota para a comunicação social) on the 21st of June of 2008 (lost in transcription ?), announcing the archiving of the inquiry on the facts and informing that it could be reopened on the MP's initiative or at the request of someone concerned, if new evidence appeared that would prompt serious, relevant and consequent diligences.
According to the allegation 20, the date is 22.6.2008 (another lost in transcription ? The date was in fact the 21st of July 2008).

21. The criminal inquiry was reopened due to the appearance of new evidence.
Not proved (unquoted)

22. The attention of the media and of people in general diminished when defendant Gonçalo Amaral’s book was published.
Not proved (unquoted)

23. Proved that the book sales were in part done by consignment (deposit) and partly firmly sold with a right to return copies for various motives like production fault, damage of fabrication or rough handling or remaining unsold.
According to allegation 23, the sale was only on consignment, being subject to devolution for various reasons, like handling, manufacturing defects or their non-transaction.

24. The so-called “Maddie Case” has been profoundly treated within the Portuguese and foreign society, whether by the media, or through books, like those authored by Paulo Pereira Cristóvão, Manuel Catarino and Hernâni Carvalho.
Proved (unquoted)

25. The so-called “Maddie Case” was commented upon by Dr. Francisco Moita Flores, former inspector, writer, criminalist and commentator, in various media.
Proved (unquoted)

26. For unknown reasons, the "materia de prova" jumps over this article, though there is an allegation 26 :
Have authors Kate MacCann and Gerald MacCann hired communication firms and spokespeople through the Madeleine Fund ? 

 
27. and 28. Proved that the facts referred to in the book, in the interview do Correio da Manha and in the documentary concerning the investigation are mostly facts that occurred and are documented in that investigation.
The allegation 27 concerns only the book and the interview, whereas the allegation 28 questions that the documentary uses only facts that are also in the inquiry files.

29. After a deliberation on October 27th 2008 the capital of VC Filmes was increased, and registered on September 28th 2009, the effect of which being that the capital of that firm was now detained in a proportion of 60% by Estúdios Valentim de Carvalho, Gravações e Audiovisuais SA and of 40% by Fundo de Investimento para o Cinema e o Audiovisual.
Proved (unquoted)

30. Proved that on June 6th 2008 defendant VC Filmes agreed to yield to VC Multimedia the rights to commercialize, distribute, exhibit and broadcast several cinematographic and audiovisuals works (films, mini-series and documentaries) that were to be produced within 5 years.
The allegation 30 uses again "sell" instead of "commercialize" and, instead of "several... within 5 years", mentions "all of the cinematographic and audiovisual work that it creates, develops and produces".

31. Until today the documentary has been reproduced only once to be edited, published and sold in Portugal under video format, in this case a DVD.
Proved (unquoted)

32. The reproduction and edition of the documentary in video format have been authorised by Valentim de Carvalho Multimédia SA to Presslivre, Imprensa Livre SA, the owner of the Correio da Manhã newspaper, according to a contract between both.
Proved (unquoted)

33. The DVD, its covers and packages would be, as they were, manufactured on behalf of, under order of and under the responsibility of Presslivre, in order to be distributed and sold together with newspaper Correio da Manhã.
Proved (unquoted)

34. The entire process of registering and classifying the video edition (DVD) of the documentary with ICAG would be, as it was, developed by Valentim de Carvalho Multimédia, the cost of the process being carried by Presslivre, as it did.
Proved (unquoted)

35. Proved only that the documentary was distributed for sale together with the distribution for sale of the newspaper Correio da Manha.
According to allegation 35, the distribution for sale took place in conjunction with the distribution for sale of the newspaper Correio da Manhã’s edition of April 24, 2009.

36. The documentary was reproduced, and even subtitled in the English language, by third parties that published it on the internet, without permission and against the will of the defendant Valentim de Carvalho – Filmes, Audiovisuais SA.
Proved (unquoted)

37. Illicit diffusion damages not only the rights that are held by defendant Valentim de Carvalho – Filmes, Audiovisuais SA over the documentary, but also its commercial exploration, because any citizen can watch the documentary, also only one “click” away.
Proved (unquoted)

2. Motivations for the décisions

2.1 Documents of reference
 

The positive and restrictive answers above (the 37 articles) result from the critical and conjoined analysis of all the documented evidence, through images and sound recordings (especially of the DVD), witness statements and other declarations, increasing the value, in particular, of the elements of proof that further will be mentioned particularly according to the order of the respective answers.

In terms of general considerations, it is important to mention the documents that were joined to the Acts (the main ones and the unnamed providência cautelar ("injunction") and were most pertinent for the building of the conviction. Those are :

a) Quote of the original of the July 24 2008 Correio da Manhã article that contains the interview of GA mentioned – pp. (fls.) 93-98 of the providência cautelar (PC)

b) Copy of the April 15 2009 Público article with mention of the number of TV spectators who watched the documentary broadcasting – in p. (fl.) 130 of the PC.

c) Quote of the Noticias TV mentioning the audience for the same documentary – p. 132 of the PC.
 

d) Copy of the report concerning the shelving of the investigation (n°201/07.0GALGS) – pp. 144-173 of the PC.

e) Publicity for the launching of the book on 24 of July – p. 371 of the PC.

f) Contract "Option of rights Deal Memo" between Gonçalo Amaral and defendant VC Filmes on March 7 2008 – pp. 422-23 of the PC.

g) "General Contract on distribution" between VC Filmes and Valentim de Carvalho Multimédia on June 6 2008 and "Addition for TV productions" on February 28 2009 – pp. 916-24 of the PC. 

h) "Contract for Videograms distribution" between Valentim de Carvalho Multimédia SA and Presselivre SA on March 31 2009 – pp. 1047-53 of the PC. 

i) "Contract for transfer of copyright" between Guerra&Paz and Gonçalo Amaral on March 10 2008 – pp.277-281 of the principal process. 

j) Copy of the "Communiqué for the media" from the Procuradoria-Geral da República ( the Public Ministry) dated July 21 2008 – p. 538 of the principal (P). 

k) Information from the PJ, dated January 18 2012, stating that up to this date the claimants had not requested the reopening of the investigation – p.1037 of the P. 

l) Information from Marktest Audimetria SA about the TV audience of the documentary – p. 1045 of the P. 

m) Information from the PJ about the date on which defendant Gonçalo Amaral retired (July 1 2008) – p.1046 of the P. 

n) Information from Presselivre SA concerning the DVD's sale price (6,95 tax included) – p. 1047 of the P. 

o) Copies of receipts issued by defendant Gonçalo Amaral for defendant Guerra&Paz that amount to € 307.900,69 – pp. 1054-56 of the P. 

p) Copies of receipts issued by the same defendant for VC Filmes that amount to € 36.000 – pp. 1085- 87 of the P. 

q) Information from the PJ dated January 13 2012 about the processing of the matter having an inquiry potential after the shelving of the investigation – p. 116 of the P. 

r) Information from the PJ dated May 30 2012 about the same topic – pp. 1292-94 of the P.

s) Information from defendant Guerra&Paz about the sale price of the book – p. 1368 of the P. 

t) Act nb 3 of the Shareholders General Assembly of defendant VC Filmes and Registration Certificate of that same company – pp. 1819-40 of the P. 

u) Invoices issued by Valentim de Carvalho Multimédia for Presselivre SA – pp.1841-42 of the P.

v) Declaration of VASP about the sending for destruction of 63.369 copies of the DVD – p. 1843 of the P. 

 

w) Information from the Fiscal Administration related to the declared income of defendant Gonçalo Amaral in 2008 and 2009 – p. 1095 of the P. 

x) Copy of the book "Maddie – A Verdada da Mentira" joined to the deeds. 

y) Copy of the DVD with the same name, also joined to the deeds and which was viewed during a hearing. 

z) Digital copy of the criminal investigation provided to the media. 

2.2. Analyses of the statements 

Included in the general considerations topic there follows a brief and critical analysis of the main witnesses' statements :

1) Susan Lorraine Hubbard – married to an Anglican priest whose mission was temporarily on the Algarve. She arrived in Portugal 3 days after the disappearance of the child. She became a friend of the claimants. She stated that they are very strong people, "they are doctors", and added that "many people turned their backs on them" after the book was published and moreover after the documentary was broadcast. She said she witnessed scenes of that kind. She affirmed that the idea that all thought that the child had died was devastating for them, that they became sad and angry and feared that if people believed that Madeleine was dead that justice wouldn't be done. Asked, she affirmed that the claimants didn't feel properly offended by the book, but were surprised that it was allowed to be published the way it was. 

2) Emma Loach – worked for the claimants as a freelance producer of the documentary produced by the claimants a year after the disappearance. She became a friend of the claimants. She described them as "strong and stoics" and confirmed that they mainly worried that people, thinking that Madeleine was dead and would stop searching for her. She affirmed a fact that is refuted by the criminal investigation – that before the book there was no thesis of Madeleine's death in the flat. She referred to the claimants feeling shame and humiliation after the book was published and the documentary was broadcast that neither the characters nor the statements of the claimants support. Because of these aspects and also because this person belongs to the circle of people who worked for the claimants and/or for Madeleine's Fund, this statement is subject to a particular critical appreciation of credibility. 

3) David Martin Trickey – consultant of the claimants in the psychology area concerning the interaction of the parents with their two other children. He has been a clinical psychologist for 20 years, having started to work with families of missing children 10 years ago. He met the twins some weeks after the disappearance and mentions that, thanks to their age, they were protected from the book's effects. He affirmed that the fear is that, when exposed to the book, they may question their trust in their parents and their ability to protect them. He referred to another preoccupation concerning the friends of the twins confronting them with the book and using it to attack them. He said that his involvement with the twins was outlined in the perspective of an "ambiguous loss", referring there to the disappearance of Madeleine McCann. 

4) Angus McBride – lawyer, assisted and represented the claimants, counselling them about the criminal investigation, the relationship with the Portuguese lawyers and being an auxiliary in "the media cover" issue. He is a specialist in criminal law and relations with the media. His statement was practically all constituted by opinions, especially about the impact of the book on public opinion in the UK. 

5) Alan Robert Pike – having a bachelor's degree in social sciences, he was contracted by the tour operator of the claimants' holiday company and then, at the end of 2007, by the claimants for psychological help. He stated that the publication of the book and its conclusions brought anxiety to the claimants and that one of the more devastating effects was, for them, believing that the book would influence the public opinion, inducing people to stop searching for Madeleine. He affirmed that Kate MC told him that she had spent many days crying because of the injustice meant by the publication of the book. He said that when she saw the documentary she was even more devastated. He described the claimants as "angry, frustrated and desperate at not being able to do anything". Asked about the claimants' feelings after being made arguidos, he stated that, somehow paradoxically, they were confused for not having been made arguidos earlier, whereas they were prepared for it, and that this fact didn't traumatize them. Once more, because this person worked for the claimants, his statement is subject to a special critical evaluation of credibility and must be supported by other statements or securely based on common experience rules. 

6) João Mechior Gomes – now Attorney General Deputy, he was invited on September 10 2007 to supervise and coordinate the criminal investigation, a task that he fulfilled up to November 8/9 2010. He stated that up to when his function ceased the investigation wasn't reopened, being one of the signatories of the shelving report. He didn't transmit any other pertinent information. 

7) Ana Claudia Nogueira Santos Fernandes – she worked for the claimants between September 2009 and August 2011 on their relationship with the media. She denied that the attention of the media and the public diminished with the publication of the book, affirming that between 2009 and 2011 about 3000 news articles were published "very much focused on the book's opinion". She said also that the documentary circulated on the Web, with English subtitles. 

8.) Michael Terence Wright – married to a cousin of Kate MC, he has known her since he was 10. He stated that the claimants first reacted to the book with "much anger" and that before the book there were already "chats" on the Web that speculated about the disappearance and mentioned the thesis of death and cover up. The credibility of his statement is obscured by the fact that he was accompanied, when he appeared in court, in company of (sic) handwritten notes (p. 1164 of the deeds) which appear, in order according to an almost perfect time-line, the topics of reply to the questions that were made to him during the hearing. 

9.) Brigid Patricia Cameron – sister of Gerald MC, she arrived in Portugal on the Saturday following the disappearance, having stayed there for 3 months and then helped to "bring" the family back to the UK. She was very close to the claimants, revealing a detailed knowledge of their emotions and state of mind, although the familial proximity advises corroboration of her statement with others or with the common experience rules. She affirmed that, when the book was published, people started to care and the pain was felt by all the family. She stated that Kate's mood was very low and that she couldn't deal with daily life, she ran long distances and prayed every day. She stated that the claimants were sad when they were made arguidos, but that the publication of the book was different, they "dehumanized themselves". She affirmed that the twins entered school in August, 3 years and a half back, when they were 5 years old.

10) Henrique Romão da Silva Leite Machado – journalist at the Correio da Manhã since 2005, he is the author of the interview included in this trial. He confirmed that the affirmations attributed to defendant Gonçalo Amaral in this interview are his, adding that they were recorded. 

11) Eduardo José Campos Dâmaso – deputy director of the same journal, he confirmed the authenticity of the declarations attributed to the defendant, affirming that no complaint was interjected about an eventual lack of rigour. He denied the veracity of the fact mentioned in article 22 (Unproved – The attention of the media and of people in general diminished when defendant Gonçalo Amaral’s book was published) and confirmed the content of article 24 (Proved – The so-called “Maddie Case” has been profoundly treated within the Portuguese and foreign society, whether by the media, or through books). 

13) Ricardo Manuel Gonçalves Paiva – colleague and friend of defendant Gonçalo Amaral, he was a member of the criminal investigation team right from the very beginning up to the shelving. He confirmed the communiqué to the media referred to in article 20 and affirmed that up to this date the investigation wasn't reopened. He affirmed that the death of the child was a hypothesis in the investigation and that quite a long time after the publication of the book a "working group" was created to review the investigation and accompany the solicitations of the UK police. 

14) Luis Antonio Trindade Nunes das Neves – director of a national unit of the PJ specialized in crimes of sequestration crimes with hostages, he is also a friend of defendant Gonçalo Amaral. He took part in the investigation and stated that, after the shelving, information was still collected about the disappearance, referring that the parents were the ones who first mentioned the child's death hypothesis when they suggested to send for a South African specialist, equipped with a device for detecting buried bodies. 

15) Mario Rui da Silva Sena Lopes – he was the edition director of defendant Guerra&Paz and is the literary agent of defendant Gonçalo Amaral. He stated that the sale price of the book, tax included, was 13,30 € and that the book wasn't commercialized in Brazil. He affirmed that the copies were sold partly under consignation and partly firmly with right to returning. He confirmed the content of article 24 (see above).

16) Luis Vitorino Torre do Valle Froes – retired, he was the director of VC Multimédia. He stated that the DVD was edited by his firm that only sold it to the Correio da Manhã, this journal being the one to sell it to the public. He claimed that the remaining copies were destroyed, having stated, confronted with the documents pp. 916-1047 of the PC and the documents pp. 1841-43 that he explained. He stated that none of the VC firms (Multimédia or Filmes) was responsible for the diffusion of the documentary on the Web.

17) Antonio Paulo Antunes dos Santos – director of an association for the defence of audiovisual works, he declared that a complaint was filed to the association concerning the reproduction of the documentary on the Web.

2.3. Means of evidence for positive conviction 

Respecting the positive conviction (that led the judge to rule the points as proved), the means of proof especially relevant follow according to the order of the articles (points) : 

Art 1. The conviction results from the statements of Henrique Machado and Eduardo Dâmaso (both from the Correio da Manha), having no reason to doubt it. 

Art 2. The questioned price is the one mentioned in the "24 horas" newspaper, copied in p. 116. The proved price is the one that results from the information given by defendant Guerra&Paz, at the requirement of the claimants, in p. 1368, attributed to it more rigour and confirmed by information from one of the major booksellers, the Fnac – pp. 1377- 1440. 

Art 3, 4 and 7. Informations provided by the Fiscal Administration (p. 2095) were here taken into consideration. They indicate an amount superior to the sum of the receipts annexed to the deeds, being, comparatively, of greater credibility. 

Art 6. Was considered jointly with the document of the PC (pp. 1047-53), in particular the third clause, nb 1 of this contract, and the content of the information provided by Presselivre SA (p. 1047 of the principal process). 

Art 8. The conviction resulted from the combination of the contract reproduced in pp. 923- 24 of the PC and the statement of witness Luis Froes. 

Art 10. The fact is sufficiently shaped in the information provided by Marktest Audimetria SA, being moreover supported in the news – pp. 130-32 of the PC. 

Art 13. The answer to the content of the articles 12 and 13 can't abstract itself from the affirmation (considered elementary from the common experience rules) that, more than any theory or opinion about the causes of the disappearance of Madeleine Beth McCann, the fact of her disappearance overwhelms, with negative effects, the emotional/psychological state of the claimants, her parents. This negative emotional state pre-exists to the book, the documentary and the interview included in this trial and must not be confused with the specific psychological consequences of these concrete events (the matter at stake in this trial).

So, if it is not credible, within this larger frame (not even evidence was brought reaching it), that any state of (emotional) destruction of the claimants was caused by the book, the documentary or the interview, it is also not possible, in light of a reasonable reading of the statements provided and the rules of the life experience, to consider these events as absolutely neutral or innocuous.

From those same rules of common experience and considering the meaning of the thesis developed in the book, the documentary and the interview, the diffusion of this thesis and the statements provided by Susan Hubbard, Alan Pike and Patricia Cameron, as well as the declarations of the claimants in court, it looks solid to affirm, as it is done in the decision, that the claimants felt, as a consequence of those events (the matter that originated this trial), anger, despair and anxiety. It is yet supported by evidence that the claimants experienced worry (for fearing, according to various witnesses, that the thesis of the book would affect the efforts to find their daughter) and suffered insomnia and lack of appetite as it is reported in witnesses' statements. 

Art 14. It is not possible to assume what most people were thinking when reading or watching the thesis of defendant Gonçalo Amaral about the disappearance. This thesis doesn't, according to what is thought, affirm that the claimants had "responsibilities in the death of their daughter", but rather that they had responsibilities in the concealment of her body. In the declarations of parties* the MC themselves refuted the shame that is subliminal in the point. This feeling of shame also doesn't fit with the strong character that the people closest to them acknowledge in them. One more time, appealing to common experience allows however to affirm that the claimants feel unease by being considered as the authors of their daughter's body concealment and of a simulated abduction. 

* The new version of the Código de Processo Civil allows claimants and defendants to make a declaration in Court, as long as they ask on time. The main idea is to grant them a possibility to confess in front of the judge, since usually in civil trials only witnesses are heard.
Had the MCs asked on time the judge couldn't refuse. She did, they appealed and won. 6 months suspension, though not only due to that appeal.. 

Art 15. The fact is also patrimony of common experience and was largely corroborated by David Trickey's statement. 

Art 17. The statements of D. Trickey and of the aunt of the twins, Patricia Cameron were taken into account. 

Art 18. The decision results from the combination of the information in p. 1843 and the statement of Luis Froes.

Art 19. The fact was extracted from the information provided by the PJ in p. 1046. Art 20. Was considered the content of the "Communiqué for the media", p. 536. Art 23. The statement of Mario Sena Lopes was taken into account. 

Art 24. The media diffusion of the case is a notorious fact and is patent in the different extracts of newspapers, blogs and sites joined to the deeds. The publication of the referred books was confirmed specifically by Eduardo Dâmaso and Mario Sena Lopes. 

Art 25. The fact was confirmed by Francisco Moita Flores and is documented in the deeds. 

Art 27 and 28. The decision concerning this issue faces, firstly, the problem of the dichotomy between "facts ascertained during the investigating process" and "facts that also are part of the investigating process". If "facts ascertained in the investigation" refers to those which, with rigour and according to the procedural-penal dogma, are the result of the investigation that was done, then there's only one that deserves this qualification – the disappearance of Madeleine McCann. 

All that is part of the investigation, beyond this fact, are clues, means of evidence*, means of obtaining evidence** and theses or hypotheses that are proper to an investigation shelved for lack of evidence. It will therefore be understood that, when the "facts ascertained during the investigation" are considered apart from those that "are part of the investigation", it is referred to means of obtaining evidence, means of evidence and clues that constitute the proper investigation and are documented in the investigation. 

Being so, from the reading of the book and the watching of the documentary it can be inferred that defendant Gonçalo Amaral uses in most of his affirmations facts that effectively occurred and were documented in the criminal investigation (in the version available in these deeds). Some of the used facts aren't complete (for example, from the statement of Martin Smith – 6th volume of the investigation, p.1606 – is missing (in the book) the part where the witness affirms that the person whom he saw carry a child in his arms didn't do it in a "comfortable way, showing not being accustomed to it") and other facts produced in the book and documentary aren't documented in the process (v.g. verbi gratia, the instructions that GA gave to the rapid response unit when he learnt about the disappearance, p. 37 of the book ; the affirmation attributed to the parents that the flat showed signs of breaking-in, p. 44 of the book ; the behaviour of Kate MC with the speed of the car, p. 55 of the book ; the hypothesis of a reconstitution of the facts discussed in the middle of May, p. 94 of the book ; the "informal" identification of Robert Murat by Jane Tanner in p. 108 of the book). 

* The elements that allow to affirm the reality of facts that are pertinent concerning the existence or non existence of a crime. For example a reconstruction, a confrontation of two contradictory statements, etc.
** The diligences realized by the authorities to gather evidence. For example phone listening, laptop analysing, etc. 

Art 29. The decision is based on the combination of the documents in pp. 1819-40 of the deeds. 

Art 30. The contract reproduced in pp. 916-22 of the PC was referred to. 

Art 31. The statement of Luis Froes was taken into account, in the absence of evidence to contradict it. 

Art 32-34. The contract reproduced in pp. 1047-53 of the PC and Luis Froes' statement were considered as well as the invoices reproduced in pp. 1841-42 of the deeds. 

Art 35. The fact is corroborated by the content of the contract celebrated with Presslivre and resulted also from witness evidence. 

Art 36. The statements of Luis Froes and Antonio dos Santos were taken into account being the facts are consistent with the common experience. 

Art 37. The fact is patrimony of common experience. 

 

2.4. Elements for negative conviction

 

The negative decisions (unproved) and the undemonstrated part of the restrictive decisions (those reformulated by the judge to fit to "demonstrated facts") result from the insufficiency of the evidence produced for reaching a secure conviction or from the circumstance that the corresponding facts had been refuted, considering the reasons presented before and those that now follow :


Art 5. Apart from what appears on p. 253 of the PC regarding the publicity for the book made on a Brazilian website in the "imported books" section, no evidence was brought and the witness Mario Sena Lopes denied that the defendant had commercialized the book in Brazil.

Art 9. This fact was not proved and was denied by the witness Luis Froes.


Art 11. The affirmation, that is refuted by the information provided by the PJ in pp. 1116-1292, points besides a not very plausible actuation of that criminal police organ, contradicting the principle of the criminal process' notoriety.
Art 12. It was not proved that the claimants are destroyed from a moral, social and ethical point of view. From the family point of view, Patricia Cameron's statement reveals a successful effort of cohesion and mutual assistance. From the sentimental/emotional point of view it is not credible that the sequels of the facts of these deeds reach the point of destruction much beyond the pain already caused by the disappearance of the claimants' daughter.

Art 16. It is not possible, from the perspective of the available evidence, to discriminate among those alleged facts those that are consequences of Madeleine's disappearance and those that were induced by the book/documentary/interview.


Art. 21. No documented evidence was produced, by certificate of the criminal process, revealing the veracity of that fact.


Art 22. The affirmation was copiously hackneyed by proved facts.

End of "items of evidence".

In law, the proof (a prova) is any means to convince the judge about the truth of a fact. "A prova" provides the pertinent items of evidence thanks to which the judge may form a judgement.