Kate, Gerald, Madeleine, Sean and Amelie McCann ― the last three minors represented by the first claimants, their parents ― filed, against Gonçalo Amaral, the publisher G&P 1, the audiovisual company VCFA 2 and TVI 3, 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.
1 : Guerra & Paz, Editores SA.
2 : Valentim de Carvalho-Filmes e Audiovisuais SA.TVI
3 : TVI-Televisão Independente .
4 : The Portuguese Civil Code will be mentioned as CC.
In order to conclude with the unlawfulness of those behaviours, were considered the respective contents of the book, documentary and interview, and the conflict between freedom of speech and right to good name and reputation of the plaintiffs.
...(pp. 53, 57, 59, 144), the statements of the Smith family (p. 115) and the evidence collected by the K9 team (pp. 157, 162, 167).
3. Kate Healy and Gerald McCann are suspected of involvement in hiding the corpse of their daughter;
4. Death may have resulted from a tragic accident.
5.There are evidence of negligence in the guard and safety of the children (n° 24)."
The documentary develops the referred opinion in a more appealing way, as it is proper to the audiovisual support, giving it an appearance of police reconstruction of the facts. It steps from the expression of an opinion to the attempt to prove a thesis. It is the defendant Gonçalo Amaral who says it, while the narrator at the beginning of the program : "In the next 50 minutes I will prove that the child was not abducted and died in the holiday apartment in Praia da Luz" (n° 41).
One wonders then what is the difference between 1) asserting – as it was done at a certain step of the investigation or as many commentators do – that there are indices of accidental death, concealment of the corpse and simulation of crime and 2) supporting this view as did the defendant Gonçalo Amaral in those three mediums.
The criteria of harmonization of the various consecrated rights results of the following art. 29°-2, which states that "in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others..."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."
1 : The Universal Declaration of Human Rights (1948) will be alluded to as UDHR.
In English here.
En français ici.
...and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
Article 10°-1 states :
In spite of the freedom of expression affirmed in this norm and of the prohibition of any interference in it by public authorities of each country, the paragraph 2 of the same article states that"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".
The same Convention consecrates in art. 6°-2 one of the fundamental pillars of societies governed by the principles of the democratic State of Law, establishing that"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."
As it will appear below, the activity of the European Court of Human Rights in interpreting and precipitating in the concrete case of those standards reveals to be particularly important [retain up yet the principle of the reception of the international law into Portuguese law, in art. 8°-1 of the Constitution of the Portuguese Republic (CRP) 3]."everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".
The CRP protects the rights analysed in the chapter on rights, freedoms and personal guarantees, which is the part of fundamental rights.
Indeed, the art. 26°-1 of that legal document, under the heading “other personal rights”, states that to all are recognized rights ( ... ) to good name and reputation ( ... )"
1 : The European Convention for the Protection of Human Rights and Fundamental Freedoms is currently shortened in the Convention or the European Convention on Human Rights, hence ECHR.
2 : In order to avoid any possible confusion, in English, between European Court of Human Rights (ECHR) and European Convention on Human Rights (as well ECHR), the first will be alluded to as ECHR, while the second from now on will be named by its shortened forms (see above).
3 : The Constitution of the Portuguese Republic will be mentioned as CRP.
However, in the same fundamental legal document and with equal dignity, the article 37° establishes the protection of the freedom of expression, stating its paragraph 1 that "all have the right to freely express and divulge their 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".
In the Constitution and also interesting for the present case, the freedom of the press is also protected, being one of its greatest exponents "the freedom of expression and creativity for journalists and collaborators" [art. 38°-2a)]."From n°3 results, however, that there are certain limits to the exercise of the right to freely express and divulge one's thoughts. The freedom of expression and information can not actually take precedence over the fundamental rights of citizens to good name and reputation, to moral integrity, to privacy" (CRP).
It should be noted that the Constitution itself provides the criteria to resolve the eventual conflict between fundamental rights by establishing in article 18-2 that the legal restrictions on these rights "must (...) be limited to what is necessary to protect other rights or constitutionally protected interests".
The Constitution also welcomes the presumption of innocence as one of the guarantees of the criminal case (art. 32°-2).
Under the aegis of ordinary law, the article 70° of the CC establishes the general protection of the personality, stating that the law protects individuals against any illegal offence or threat of offence to their physical or moral integrity.
On the other hand, still in that CC, the article 483º generically states that "anyone who, intentionally or recklessly, unlawfully violates the rights of others...
... or any legal disposition intending to protect interests of others has to compensate the injured party for damages resulting from violation", and the article 484º specifically establishes that "anyone who claims or spreads a fact capable of harming the credit or the good name of any person, natural or legal, is liable for the damages suffered".
This being the general outline of the law applicable to the decision arisen in this trial, it is important to know how the Superior Courts fall and solve the conflict between the contemplated rights, starting with the ECHR, of which the jurisprudence is particularly industrious and interesting in this matter."1. Having a collision of rights, equal or of the same kind, the holders (of those rights) should give in to the extent of the necessary for all (the rights) producing their effect without major detriment for any of them .
2. If the rights are unequal or of a different kind, prevails the one that should be considered superior."
From this same jurisprudence one retains that in contrast to the traditional current of the Portuguese higher courts, this court does not accept, in principle, the priority of the right to honour and good over the freedom of expression/freedom of the press [are examples of this traditional line, among others, the STJ's Rulings of February 14 2002 and March 7 2002 reported in reviews n° 3379/01 and 184/02, of the 1st and 7th sections].
1 : Supreme Court of Justice
Very differently, according to the case-law of the ECHR, freedom of speech and press prevails, admitting strict restrictions, especially when is at stake the debate of matters of public interest.
… whether is justified – in respect of the referential criteria mentioned above, with the inclusion of a margin of proper appreciation by the internal organs of each of the Convention's signatory States - the restrictive interference in the field of that same freedom and the consequent move to legal sanctions.
"The honour of the person translates therefore into the positive value that they infer themselves from the core of their being, that is the moral and ethic substrate of their existence, while the social consideration, the good name and the reputation translate into the judgement by others about every one. Correspondingly, the right to good name and to reputation is essentially for the person not be offended or injured in their honour, dignity or social consideration by imputation of others and to fight back against this offence and to obtain redress" [idem].
"honour covers immediately the projection of the value of human dignity, which is innate, offered by nature equally to all human beings, unlikely to be lost by any man in any circumstance ( ... ). In a broad sense, it also includes the good name and reputation, as syntheses of social appreciation for determining qualities of uniqueness of each individual at the intellectual, moral, sexual, family, professional or political level" ["The Personality General Law", 1995, p. 303] .
"the qualities acquired throughout life, by the individual's effort or otherwise and in various aspects (family, political, professional, scientific, literary, artistic, commercial, etc.). Itcovers inter alia, character, honesty, righteousness, loyalty, etc., corresponding to a sense of personal self-esteem. It is based on individual awareness of one's own worth : self-recognition and self-assessment".
..."the law protects, however, not only that personal feeling of own worth, which can call up the internal honour, but above the projection in the social consciousness of all the personal values of each individual, which can be called external honour : the qualities a person needs to be respected in a social environment, including the good name and the reputation, the social consideration" [op. cit. p. 587] .
"It has not been possible to obtain any piece of evidence that would allow for a average man, under the light of the criteria of logics, of normality 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 abduction or an opportunistic abduction), nor even to produce a consistent prognosis about her destiny and inclusively - the most dramatic - to establish whether she is still alive or if she is dead, as seems more likely. (…) Therefore, after everything seen, analysed and duly pondered, facing all that is left exposed, we settle (…) the archiving of the process concerning the "arguidos" Gerald Patrick McCann and Kate Marie Healy, because there are no indications of their practise of any crime" (n° 15).
… made by other public officials about pending criminal investigations which encourage the public to believe the suspect guilty and prejudge an assessment of the facts by the competent judicial authority [HUDOC 1].
Likewise, the presumption of innocence requires that the absence of guilt that emanates from it is respected, after the acquittal or dismissal, in all legal proceedings of any kind and by any authority that comes into contact with these facts [idem Allen vs United Kingdom].
In this case, the claimants Kate and Gerald McCann never ceased to benefit from this presumption of innocence and from the behaviour imperative that it places on national judicial and justice authorities and on all the civil servants and agents.
The defendant Goncalo Amaral was the coordinator of criminal investigation from the date of the crime breaking news and October 2nd, 2007 (n° 12).
On July 1 2008, GA retired from the Judicial Police, having the book "Maddie - A Verdade da Mentira" been released on the 24th and sold with the same day edition of the newspaper CdM, an edition where was published the interview which is part of this lawsuit (n°s 13, 25, 26 and 48).
"The Police have the responsibility of defending democratic legality, insuring internal security and protecting the citizens' rights" [art. 272° of the CRP].
"The Judicial Police is an upper organ of the criminal police assisting the administration of justice, hierarchically organised, dependent on the Minister of Justice and supervised by law [article 1° of the Organic Law of the Judicial Police, approved by Decree-Law n° 275- A/2000 of November 9, as amended by Decree-Law No. 235/2005, of December 30, then in force].
The criminal investigation chief-coordinators are authorities of criminal police under the terms and for the purposes of criminal procedural law [article 11°-g of the same law].
Under the Disciplinary Regulation of the Judicial Police, the duty of confidentiality is one of the general duties of the members of the Judicial Police [cf. art. 5°-e of the Regulation approved by Decree-Law No. 196/94, of July 21].
The duty of reserve is a functional requirement common to magistrates and organs of criminal police. As an example, in the case of the magistrates of the Public Ministry, the ordinary law postulates that this duty will remain after retirement, establishing the article 148°-7 of the Statute that "retired judges must respect the reserve required by their condition."
It is a duty that is essential to the preservation of public confidence in the institutions of the administration of justice. The duty of reserve protects the purposes of the criminal action, but also the physical and moral integrity, the freedom and the dignity of those concerned by that action.
The criminal investigation officers, retired for a motive unlike disciplinary sanction, retain special rights, being holders of an identification card for recognition of their quality and the rights they enjoy [article 149°-1,2 of the Organic Law of the Judicial Police and Ordinance No. 96/2002 of 31 January].
The statute of the retirement [approved by Decree-Law 498/72 of December 9] establishes, from its original wording in the respective article 74°-11, that the retired, apart from his right to a retirement pension, remains bound to the civil service, keeping the titles and the category of the position he held and the rights and duties that do not depend on being in activity.
According to the note of the Attorney General Department's advisory Council on February 16, 2006.
The retirement legal relationship is, compared to the public employment legal relationship, a relationship less intense where there is a blurring of the ties between the retired and the Administration, expressed in the reduction of rights and duties. There is even so a 'bond to the civil service', which materialises in conserving the titles and the position of the function exercised and the rights and duties that are not dependent on activity status"
Bearing in mind that legal mosaic, how to solve the conflict in this case between the rights of the claimants Gerald and Kate McCann to their good name and reputation and the defendant Gonçalo Amaral's right to his opinion as resorting to freedom of expression he's entitled to ?
It appears that the conflict should be solved with the factual data that are present from the outset and that reveal the special condition of the defendant in front of the criminal investigation, condition that he capitalises in the book, the interview and the documentary.
In this documentary, the defendant is explicit right in the opening :
There is no doubt that it is the proper defendant who calls his condition of former coordinator of the criminal investigation and that it is through this statute that the book, the interview and the documentary distinguish themselves - self-qualifying – from the opinion of television commentators, writers or other who gloss about the subject.
But, at least in our view, that same status cannot but mark the limits of the defendant's freedom of expression when compared to the one detained by those others.
Having been in charge of that investigation as a member of the Judicial Police, the defendant Gonçalo Amaral, although retired on July 1 2008, did not enjoy, on the following July 24, in respect of the outcome of the criminal investigation released on the 21st of the same month and year, a large and full freedom of expression.
In this concrete situation, despite the personal reasons that the defendant invokes in the introductory note of the book, the freedom of expression should cede through the imperative of that reserve.
It was not what happened and the truth is that, on July 24 2008, scant three days after the release of the dispatch shelving the investigation for lack of proof, the book was launched, sold with the newspaper’s edition, and the interview was published.
The time-line displays well the intention to call for the contradictory, in the public domain, the shelving of the investigation, comparing it with the thesis of the previous line of investigation, told as the true one by a person who had been responsible for the same investigation.
In this form of resolving the conflict between the rights is revealed the illegality of the conduct of the defendant Gonçalo Amaral in respect of the effects of article 484° of the CC.
In disagreement with this judgement, the defendants 1°, 2° and 3° (the defendent TVI didn't) lodged an appeal against it.
The Lisbon Appeal Court granted those requests and revoked the appealed decision, judging the lawsuit unfounded concerning the appellants and acquitting them of all the requests. Their allegations were expressed in the following way :
In terms of personality rights, article 26°-1 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 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, concerning freedom of expression and creativity for journalists and collaborators.
Article 18-2 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, 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 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, assign to the extent necessary for all rights to take effect without major damage for any of them. Article 335°-2 states that, all rights being uneven or of different species, prevails the one that has to be considered higher.
"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 importance 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 being 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 dated 20/01/2010)
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 then 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 Gerald and Kate McCann, the then 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.
Not withstanding, 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 the legitimate exercise 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 view on the case, contradicting their theory – without doing anything but practicing...
… a lawful and constitutionally sanctioned right to opinion and freedom of expression of their thoughts.
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.
Although they were not considered sufficient to elicit criminal charges, nothing prevents such facts of being subject to various assessments, especially in a literary kind of work.
Therefore, and as rights are enshrined namely in articles 37° and 38° of the CRP, 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 officers 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.
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.
Both then respondents (here appellants) lodged an appeal for reviewing the Appeal Court sentence. Provided allegations and gathered the legal visas, it's up to deciding.
2 – Fundamental principles
1. The applicants Gerald McCann and Kate Healy are married to each other.2. The applicant Madeleine McCann was born on 12.5.2003 , daughter of Kate McCann and Gerald McCann.
3. The applicant Sean McCann was born on 1/2/2005, son of Kate McCann and Gerald McCann .
4. The applicant Amelie McCann was born on 1/2/2005 , daughter of Kate McCann and Gerald McCann. 1
5. The applicant Madeleine McCann has been missing since 3/5/2007, resulting in the criminal investigation n°201/07.0 GALGS, opened by the prosecutor of Portimão.
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.
7. The dogs Eddie and Keela, from the British police, have detected human blood and cadaver scent in the vehicle rented by the applicants Kate McCann and Gerald McCann after Madeleine's disappearance.
8. The applicants Kate McCann and Gerald McCann were constituted (by lawyer) assisted witnesses (arguidos) in the criminal investigation.
9. On 10/9/2007 (pp. 2587-2602 of the criminal investigation), Chief-Inspector Tavares de Almeida wrote a report and particularly the following :
"Given what we could establish, the facts point towards the death of Madeleine McCann during the evening of May 3 2007, in the apartment 5A of Praia da Luz Ocean Club resort, occupied by the McCann couple and their three children (p. 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 ;
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.
H) Evaluating the adequate measure of constraint to be applied in the case (folio 2601 of the minutes)".
10. On 10/9/2007 (p. 2680 of the criminal investigation), the prosecutor in charge of the investigation issued an order which says this in particular :
"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.In this sense, and because the following requested inquiries are essential for the discovery of the truth, especially the analysis of the information contained in the telephone exchanges' ...
...between the McCann couple and their friends, and other phone numbers, which have shown to be related to events of May 3 2007 evening, the minutes are delivered to the Judge of Criminal Inquiry (JCI)". 111. On 3/12/2007 (p. 3170 of the criminal investigation), the JCI of Portimão issued a decree in which he stated particularly this:
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."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 of folios 3150, 3154 and sq, the data requested by the public prosecutor being thus very important to discover the truth, I order (...) the soliciting telecommunications operator Portugal Telecom."
13. The defendant GA is retired from the PJ since 1/7/2008 (n° 19).
14. On 21/7/2008, the Republic General Prosecutor informed through a "note for the social communication" that the investigation mentioned in 5. would be shelved and could be reopened at the instigation of the Public Ministry or at the request of any interested party, if new evidence arose, bringing forth serious, relevant and consistent inquiries (n° 20).
15. The filing dispatch concerning the criminal investigation, issued on 21/7/2008 by the Republic prosecutor, says in particular this :
"Taking into account that certain points in the formal suspects' ('arguidos') and witnesses' statements revealed contradiction, at least apparently, or lacked physical confirmation, it was decided to carry out the "reconstitution of the fact", an operation that is consecrated in article 150° of the Penal Process Code (CPP) in the sense of duly clarifying, on the very location of the facts, the very important following 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.
...the necessity and opportunity of their trip were clarified several times, witnesses chose not to attend, which made the reconstitution impractical.
... 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 (…)
Therefore, everything having been examined, analysed and duly pondered, considering 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".
16. The defendant G&P is a commercial company whose objective is namely editing, publishing and trading books, import and export included.
17. On 10/03/2008, defendants G&P 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.
18. The 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".
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".
20. The defendant Gonçalo Amaral is the author of the book Maddie - A Verdade da Mentira, published by the defendant G&P.
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".
22. The data sheet of the book (p. 4) says namely this : "Review: Fernanda Abreu. Cover and pagination : Ilidio J.B. Vasco. Photography author : Sandra Sousa Santos © G&P 2008. All rights reserved. © Cofina media for photographs and infoengraving, developed by Nuno Costa."
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.
...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.
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) (...)
– 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 talked about... 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...
- 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 for a while ! 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, 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 .
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 unlocated body, an ascertainment confirmed by the English EVR (Enhanced Victim Recovery) and CSI (Crime Scene Investigation) dogs and corroborated by laboratory's preliminary reports (pp. 219-220)."
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, on the evening of 3 May 2007;
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 )."
25. The book "Maddie - A Verdade da Mentira" was launched on 24/07/2008 in El Corte Inglês Shopping Centre in Lisbon.
26. On the launch day (24/07/2008), the book was also sold with the newspaper Correio da Manha.
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.
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.
29. Within the scope of the injunction attached there were only around 7.000 copies of the book delivered to the applicants legal representative.
30. Copies of an English and Portuguese version circulate in the internet without the authorisation of G&P
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 (n° 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 (n°s 3 and 4)
34. The defendant, VCFA is a commercial society that creates, develops, produces and promotes the exhibition and broadcast of cinematographic and audiovisual works.
35. On the 7th March 2008, the defendant Gonçalo Amaral and the defendant VCFA signed a written agreement (pp. 282-283) designated "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.
36. On the 11th March 2008, the defendant GA and the defendant VCFA signed a written agreement (pp. 284-288) , designated “transfer of rights – option contract” through which the defendant GA gave up to the defendant VCFA 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.
37. Clause 2 of this agreement states the following : By the transfer of these exclusive right of option, VCFA compromises to pay the author the gross sum of 25.000, subject to legal fees and added VAT.
38. Clause 4 of this agreement states the following : 1) Concerning the adaptation of the book into documentary, the author commits himself 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 VCFA 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.
40. The defendant VCFA produced the documentary Maddie, The Truth of the Lie, directed 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.
41.At the beginning of the documentary, the defendant Gonçalo Amaral states the following:
42. At the end 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.
43. The defendant, VCFA, concludes the documentary with this statement :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.
44. In the sequence of deliberations on the October 27, 2008, it was decided to increase the share capital of the defendant VCFA, 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. (n° 29)
46. Before the documentary’s broadcast, the defendant TVI issued this statement :
47. At least two million and two hundred thousand people watched the program broadcast by TVI on 13.04.2009. (n° 10).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.
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 July 24, 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.
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 ?
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 affirm 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?
49. The defendant Gonçalo Amaral issued the above mentioned affirmations. (n° 1)
50. The defendant Gonçalo Amaral gave interviews to the defendant TVI on the 16.05. and the 27.05.2009.
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 “Maddie - A Verdade da Mentira” by Gonçalo Amaral.
52. The above mentioned DVD was edited and the edited copies were traded by VCFA through agreement with PIL 1. (n° 8)
53. 75.000 copies of the DVD were distributed for sale.
54. 63.369 copies of the DVD were not sold, having subsequently been destroyed. (n° 18)
55. On the video cover the word “confidential” is written in red.
56. The DVD was sold by PIL as an insert with the newspaper owned by the same company, CdM, at the price of € 6,95 (six euros and ninety five cents, VAT included). (n° 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. (n° 31)
58. Reproduction and editing of the video documentary format was authorised by VCFA to PIL, which owns the newspaper CdM, according to the agreement between both established. (n°32)
59. Under which (contract), the DVD, its cover and packaging would be, and were, made by account, order and under the responsibility of PIL, to be distributed and commercialised jointly with the newspaper CdM. (n°33)
1 : Presselivre-Imprensa Livre SA
60. And the whole process of registration and classification of the video (DVD) edition of the documentary with the IGAC (General Inspection of Cultural Activities) would be, and it was, developed by VCFA, being PIL that would support the costs, and it did. (n° 34)
62. The defendant Gonçalo Amaral earned by selling the DVD, in 2008, the amount of €40.000. (n° 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 VCFA (n° 36)
64. This illicit diffusion undermines not only the rights held by the defendant VCFA on the documentary, but also its commercial exploitation, as any citizen can access the documentary with just one "click". (n° 37)
65. The Republic Prosecutor Office in Portimão 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.
66. The content of such a digital copy was made public, including through the Web, having been publicly and universally read, commented and discussed.
67. The claimants Kate and Gerald McCann have alerted the press about the disappearance of their daughter.
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.
69. The Oprah interview was worldly broadcast by signals available through satellite and cable networks.
70. This interview for the Oprah program was broadcast in Portugal by SIC, on the 9.05 and 12.05.2009.
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'.
72. On 15.04.2009, the defendant TVI signed a license preliminary agreement for broadcasting, exclusively in Portugal, the documentary SMM for 35,000 €.
74. The documentary SMM, translated Maddie, Two Years of Anguish, was broadcast by SIC on 12.05.2009.
75. On 17.10.2007, Clarence Mitchell, spokesman for Kate and Gerald McCann said they were realistic enough to admit that their daughter would probably be dead.
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 Gonçalo Amaral from investigations that were developed under his coordination.
77. The claimants Kate and Gerald McCann hired, through Madeleine's Fund, PR firms and spokesmen.
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 Cristovão, Manuel Catarino and Hernani Carvalho. (n° 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. (n° 25)
80. The facts related to the criminal investigation of Madeleine McCann's disappearance that the defendant Gonçalo Amaral refers to in the book, in an interview with the newspaper CdM and in the documentary are mostly facts that occurred and are documented in this investigation. (n° 27 and 28).
81. As a result of the defendant Gonçalo 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 (n°13)
82. The same claimants feel unease because they are considered by people who believe in Gonçalo 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. (n° 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. (n°15)
84. Sean and Amelie McCann entered the school in August 2010 without knowledge of the defendant's thesis referred to above. (n°17) 1
a) that the cover price of the book "Maddie-The Truth of the Lie" in Portugal is of € 13,80, VAT included,
b) that the defendant Gonçalo Amaral had earned from the sale of the Portuguese edition of the book 'Maddie-The Truth of the Lie' an amount not less than 621.000 €,
c) that the defendant Gonçalo Amaral had earned from the sale of editions of the book in foreign languages an amount not less than 498,750 €,
d) that the book had been sold in Brazil by the defendant G&P,
e) that the DVD has a cover price of 6 €,
f) that the defendant Gonçalo Amaral had earned by selling the DVD an amount not less than 112.500 €
g) that the DVD had been edited and the edited copies had been sold by the defendant VCFA,
h) that the defendant VCFA had already put the DVD available in English version, for immediate delivery through order on the web,