Décision du Suprême Tribunal de Justice
Page 01Kate, 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.
The sentence
uttered
following
the
judgement
held that
the action
was
admissible
in part,
sentencing
the first
defendant to
pay to each
of the first
two
claimants
the amount
of €250.000,
plus legal
interest,
and
prohibiting
the first
three
defendants
to proceed
with
existing
sales and
any new
editions of
the book and
DVD as well
as
transferring
the
associated
copyrights,
absolving
the
defendants
of other
queries of
the
claimants
and the
fourth
defendant of
all queries.
The first
instance's
judgement
concluded
that the
book written
by Gonçalo
Amaral, the
adaptation
of this book
for a
documentary
and the
interview of
the same
defendant
were
illicit,
according to
article 484° of
the CC 4 and that
were
verified the
other
assumptions
legally
binding the
compensation
foreseen in CC's art.
483°,
wherefore
the requests
expressed in
the lawsuit
were
considered
partly
proceeding
in the terms
mentioned
above.
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.
Page 02In 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.
Therefore, in that judgement, was developed the following
argumentation
that we
reproduce
partly
thereafter
because it
appears
interesting
on the point
of view of
the solution
that will be
given to the
issue exposed
in the
minutes :
Starting the discussion in a logical and
chronological
order
through book
analysis,
one
immediately
establishes
that what is
at stake is
not a text
with
informative
content.
In fact, one doesn't find in the book, reported in a
stripped and
simple way,
the facts of
the
investigation
that
intended to
clear the
circumstances
of the
disappearance
of the minor
Madeleine
McCann on
May 3, 2007.
No added
value is
brought to
the partial
copy of the
investigation
that the
Attorney
General's
Office did
distribute
for Social
Communication
after the
closure of
the
investigation
(n°s
65 and 66 of
the proven
facts).
The book is the expression of an opinion, including
the account
of the
conclusions
that the
author draws
from the
means of
obtaining
evidence
produced in
the
investigation
in order to
formulate a
thesis, an
hypothesis
of ascertainment
of the
facts.
The thesis is synthetically that there was no
kidnapping
of the
minor,
contrary to
the initial
premise of
the criminal
investigation
which is
what the
child's
parents
maintain up
to now. What
happened was
the
accidental
death of the
child in
flat of the
tourist
resort, then
the cover up
of this
event
through the
concealment
of her
corpse and
the
simulation
of the
referred
crime,
carried out
by the
claimants
Gerald and
Kate McCann.
Going through the book, one is driven along the days
of the
investigation
since the
breaking
news about
the crime.
The author
underlines,
at each step
of the
time-line,
the various
indices that
present a
match with
the referred
thesis -
among
others, the
lack of
bedroom
break-in
signs and of
strange
fingerprints
(pp. 44 and
48), the
presence of
the press
alerted by
the group of
friends of
the couple
(p. 48), the
fact that
the key
witness Jane
Tanner
affirmed the
sighting of
the
"pseudo-abductor"
(sic) when
two other
protagonists,
in the same
place, saw
nothing (p. 51), the
inconsistencies
of the
statements
and
discrepancies
of those
elements of
proof
between
themselves...
Page 03...(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).
A first conclusion is that if the book is about an
hypothetical
checking of
the facts or
about the
opinion of
the author
on how the
evidence
collected in
the
investigation
should be
read, one
shouldn't
speak of
falsehood,
untrue
facts, and
it doesn't
make sense,
without a
better
understanding,
to discuss
the "exceptio
veritatis"
('truth
exception')
The means of obtaining evidence and the evidence
referred to
in the book
are those of
the criminal
investigation
and most of
the facts
that the
book is
concerned
with (as
well as
those
referred to
in the
documentary
and
interview),
when related
to the
criminal
investigation,
are mostly
facts that
occurred or
are
documented
in the
investigation
(n° 80 of
the proven
facts).
In our view, the issue, in this trial, is the
exercise of
the right of
opinion by
the
defendant in
that
context.
This kind of view is, moreover, evident in the final
conclusions
of the book
when the
author
himself says
: For me
and for
detective
inspectors
who worked
with me on
the case up
to October
2007, the
results we
have reached
are as
follows:
1. The minor Madeleine McCann died in apartment 5a
of the Ocean
Club, in
Vila da Luz
on the night
of May 3,
2007;
2. A kidnapping simulation occurred;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 interview given by Gonçalo Amaral to the
newspaper
CdM 1 and
published in
the edition
of July 24,
2008 is a
way to
advertise
the book and
therefore
the thesis
developed in
it. Here the
defendant
reaffirms
that thesis
in so many
answers as
questions
put to him
: 1° the girl
died in the
apartment 2°
the
testimonies
of Jane
Tanner and
Kate McCann
are not
credible 3°
there are
clues of
crime
simulation
4° there was
concealment
of the body
(n° 48).
1 : The daily newspaper Correio da Manhã is from now on named “CdM”.
Page 04The 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).
In the documentary, this thesis is clearly stated as
the
contra-narrative
of the
abduction
hypothesis,
as the real
alternative
to it and to
the shelving
of the
investigation
for lack of
evidence.
This is why
the
challenge is
"discover
the truth
about what
happened
that day. A
death that
many people
want to
cover up",
ending the
defendant
with this
conclusion :
"I am sure
that this
fact
[Madeleine
McCann died
in the
apartment]
on day will
be revealed.
The
investigation
was brutally
interrupted
and there
was a
political
and
precipitated
shelving.
Some hide
the truth,
but later or
earlier, the
varnish will
crack and
the
revelations
will emerge.
Only then
there will
be justice
for
Madeleine
McCann"
(n°s
41 and 42).
In either supports - book, interview, documentary -
the
presented
thesis aims
to be
perceived as
the real
narrative of
events,
compared
with the
initially
sustained in
the
investigation
and by the
claimants
mediated
abduction
theory. The
same thesis
is still
held as the
truth that
is hidden
behind a
shelving
determined
by political
reasons and
subservience
to the
British
authorities
.
It is that, it appears , the meaning that the
average
reader
attributes
to the title
"Maddie - the
Truth of the
Lie", the
"truth"
being the
thesis of
the book and
the "lie"
the
abduction
narrative.
Now the thesis that the minor died accidentally in
the
apartment
and that
this fact
was hidden
by her
parents, who
spread and
fed, in
order to
deceive, an
hypothesis
of
abduction,
is not new,
there's
nothing new
neither in
the book, in
the
interview or
in the
documentary.
This theory of the facts comes from the own
investigation,
it is shaped
in the chief
inspector
Tavares de
Almeida's
report (n°
9), it was
an avenue
pursued by
the
investigation
(n°s
10 and 11),
it
determined
the
constitution
of the
claimants
Gerald and
Kate McCann
as "arguidos"
and was put
within the
reach of the
media, and
soon of the
general
public
through a
copy of the
inquest
(n°s
65 and 66).
Page 05One 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.
There is one aspect that stands out in this
comparison
and it is
the
particular
relationship
between the
defendant
Gonçalo
Amaral and
the
investigation.
The defendant is not referred to the investigation
as a mere
commentator
of a criminal
"fait-divers", a
writer of
police
intrigues or
a
criminologist.
Considering
the matter
in question
here and
what
obviously
contributes
to the
authority
and
credibility
of his
opinion, the
defendant
was the
coordinator
of the
criminal
investigation
into the
disappearance
of Madeleine
McCann from
the day of
the event up
to October
2, 2007. It
is this
particular
aspect
conjugated
with others
that are
appurtenances
- as is the
time
coincidence
between the
shelving of
the
investigation
on the one
hand, and
the launch
of the book,
the
interview
and the
selling of
the book on
the other –
that are
part of the
discussion
on how to
solve, in
this case,
the conflict
between the
right of the
defendant
and the
rights of
the
claimants.
At the centre of this trial, there is a conflict
between two
existing
rights, the
right to
good name
and
reputation
of the
claimants
(through the
presumption
of innocence
that they
always were
entitled to)
and the
right to
freedom of
expression
of the
defendant,
in the
concrete
field of the
right to
opinion he
is entitled
to.
The legal protection of such rights of the claimants
is based on
the
Universal
Declaration
of Human
Rights (UDHR 1), of
which the
article 12°
states that
no one will
suffer,
among
others,
attacks upon
one's honour
and
reputation,
stipulating
that against
such attacks
anyone is
entitled to
the
protection
of the law.
However, the article 16° of this great
Declaration
states, with
equal
protection,
that
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.
Page 06
...and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
Also from the European Convention for the Protection
of Human
Rights and
Fundamental
Freedoms 1
results the
protection
of both
rights....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.
Page 07
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 spite of the value of this fundamental freedom,
the
paragraph 3
of the same article
refers to offences
committed in
the exercise
of this
freedom by
handing them
over to the
area of the
general
principles
of criminal
law and of
the unlawful
regarding
simple
social
order, while
paragraph 4
points
clearly to
the limits
which the
same freedom
may be
subject to,
recognizing
"to all
persons,
private or
collective (
... ) under
conditions
of equality
and
effectiveness
, the right
to reply and
rectify as well
as the right
to be
compensated
for damages
suffered."
Glossing the said paragraph 3, Vital Moreira and
Gomes
Canotilho
write : 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...
Page 08... 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".
In this regard Pires de Lima and Antunes Varela
teach that
"whether, by
natural or
legal
persons, a
subjective
right to
credit and
good name
exists or
not, a conduct
threatening
to cause
them harm,
in the
prescribed
terms, is
considered
as expressly
anti-juridical.
Never mind
that the
stated or
disclosed
fact
corresponds
to the truth
or not, as
long as it
likely can,
given the
circumstances
of the case,
reduce the
confidence
in the
ability and
willingness
of the
person to
fulfill
their
obligations
(loss of
credit) or
shake the
prestige
that the
person
enjoys or
the good
image the
person has
(loss of
good name)
in the
social
environment
in which the
person lives
or carries
on their
business"[annotated CC, Vol
. I, Coimbra
Editora, p.
486].
The CC also contains a norm on conflict of
rights,
pointing,
article
335°-1,2, to
two
fundamental
rules in
this regard,
namely :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
Page 09
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.
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.
Thus, this jurisprudence follows an enunciation of
ideas with
the
following
essential
core: (i)
freedom of
expression
is a
postulate of
a democratic
society and
of a State
of law,
being the
basis of
pluralism,
tolerance
and
open-mindedness
necessary to
progress in
this kind of
societies
and to the
individual
development
of its
members,
(ii) the
limitations
to freedom
of
expression
must be
anticipated
by law,
pursue a
legitimate
aim and be
necessary in
a democratic
society,
(iii) in
debates of
matters of
public
interest the
possibility
of
restrictions
on freedom
of
expression
is
particularly
limited,
(iv) the
politicians,
public
figures and
senior
officials of
public
administration,
when
exercising
their
functions,
are subject
to wider
limits of
critic than
individuals,
(v)
considering
the limits
of freedom
of
expression,
one should
distinguish
between
factual
assertions
and value
judgements,
between
statements
addressed to
the opinions
of the
opponents as
opposed to
judgements
'ad hominem'
and between
what is
critic and
what is
insult and
(vi) the
press has
the duty to
impart
information
and ideas on
matters of
public
interest and
in doing so
is allowed
to a certain
amount of
exaggeration,
even of
provocation
[cf., among
many others, Smolorz vs
Poland,
Thoma vs
Luxembourg
and Palomo
Sanchez and
Others vs
Spain ; an exhaustive enunciation of
the
fundamental
guidelines of
that
learned
Court of Justice can be read
in a Judgement of the Appeal Court of Lisbon
of
February 14
2012, rapporteur
Hon. Judge
Rijo
Ferreira.
The most recent national jurisprudence is echoing
these
guidelines,
stressing
the
importance
of the
decisions of
the ECHR
in
implementing
the boundary
between
freedom of
expression
and the
rights to
honour and
good name of
the
concerned
persons and
the
contribution
of those
decisions in
resolving
each particular
conflict
between the
two rights.
In this sense, the Ruling of February 7 2008 says
"it seems to
us that the
position of
the ECHR
results in
an
imposition
on the way
of thinking.
There is no
justification
to think,
from the
outset, on
whether a
journalistic
piece
offends
someone. It
should
rather start
from the
freedom that
the
respective
authors
enjoy. Only
then one
should
seek...
Page 10
… 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.
This does not mean, however - in our view - that the
cases in
which such a
restrictive
interference
is justified
are not
intensely
relevant. It
is enough to
read article
10°-2 to weight
what it
contains in
terms of
essential
values for
human beings" [Review n°4403/07 of
2nd Section.
In the same
sense, can be read the Ruling of
March 12
2009 in the
Review n°
2972/08].
It should also refer to the content of the right to
honour and
the
qualities or
attributes
that it
welcomes.
The STJ's Ruling of May 27 2008 ,
quoted
above, says
:
"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].
Capelo de Sousa teaches that
"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] .
Brito Correia added that honour also includes
"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".
According to
the same
author, …
Page 11
..."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] .
The protection of the rights of the claimants to
their good
name and
reputation
is, in this
case,
closely
related to
the
presumption
of
innocence.
The claimants Gerald and Kate McCann were made
"arguidos"
(formal
suspects) in
the criminal
investigation,
a status
that had the
function to
guarantee
their rights
(though not
being
interpreted
this way by
the general
public) and
ceased with
the closure
of the
investigation
having the
dispatch
(AG) report
concluded
:
"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).
In the case-law of the ECHR,
the
principle of
presumption
of innocence
imposes a
standard of
conduct for
all agents,
public
servants and
magistrates
involved in
the
administration
of criminal
justice.
The presumption of innocence prohibits, according to
these
provisions,
the
premature
expression
of opinions
or beliefs
of guilt by
the courts
but also
assumptions
by public
officers
involved in
procedures
which might
lead the
public to
suspect the
responsibility
of the
suspects in
the facts
under
investigation.
Accordingly
in the
Karaman vs
Germany
case, the
decision
claims that
"the Court
has
previously
held in this context that article 6°-2 aims
at
preventing
undermining
of a fair
criminal
trial by
prejudicial
statements
made in
close
connection
with
proceedings.
It not only
prohibits
the
premature
expression
by the
tribunal
itself of
the opinion
the person
«charged
with a
criminal
offence» is
guilty
before he
has been so
proved
according to
the law, but
also covers
statements...
Page 12
… 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].
1 : The HUDOC database provides access to the case-law of the Court, the European Commission of Human Rights' decisions and reports and the Committee of Ministers' resolutions.
Page 13
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.
Page 14
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 :
"My name is Gonçalo Amaral and I was investigator of
the Judicial
Police for
27 years. I coordinated
the
investigation
of Madeleine
McCann's
disappearance
on May 3
2007. In the
next 50
minutes I
will prove
that the
child was
not
kidnapped"
(n° 41).
The book conveys the idea that the truth of the
investigation
is merely
formal,
while the
truth of the
author (that
would have
been met at
the end of
the line of
inquiry he
followed up
to his
removal from
the case) is
the material
truth -
"This book
still has a
greater
purpose. The
purpose to
contribute
to the
discovery of
material
truth and
the
realisation
of justice"
(n° 23) .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.
Page 15
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...
Page 16
...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.
Thus, as the dominant jurisprudence understands :
"One of the limitations to freedom of information, which therefore is not an absolute right, is the preservation of the right to a good name. Journalists, media, are bound by ethical, professional duties, rigour and objectivity.– It is up to the media's right, social function, to broadcast news and express opinions, critical or not, the 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...
Page 17
... 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...
Page 18
… 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.
Page 19
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 ;
1 : These proven facts were established when the five members of the McCann family were claimants. In the concluding sentence the requests of the three McCann children are dismissed. Their parents could have lodged an appeal on their behalf, but they chose not to. Hence in the judgement by the Appeal Court Kate and Gerald McCann were the only respondents.
Page 20
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.
Thus we suggest that minutes be delivered to the prosecutor
of Lagos
aiming :
G) A possible new interrogation of assisted witnesses Kate McCann and Gerald McCann ;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' ...
Page 21
...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...
1 : The penal process is divided in 3 phases, the first, mandatory, being the criminal investigation. It is taken in charge by various police forces, directed by the Public Ministry, the PM itself being under the control of a criminal inquiry judge. The second phase is the criminal inquiry. It is not mandatory and has to be requested either by the arguido(s), by the assistant(s) of the process or by a senior magistrate, but never by the Public Ministry. This phase, a kind of recourse against the criminal investigation, is orchestrated by the criminal inquiry judge and culminates in a crucial contradictory debate. Neither the McCann couple nor the "hierarchy" requested the criminal inquiry phase, a manner of agreeing with the conclusions of the criminal investigation. The last phase is eventually the judgement.
Page 22
... saw her, or the alleged abductor, despite the exiguity of the space and the tranquillity of the area.
2) The situation concerning the window to the
bedroom
where
Madeleine
slept,
together
with the
twins, which
was open,
according to
Kate. It has
seemed
necessary to
clarify if
there was a
draught,
since
movement of
the curtains
and pressure
under the
bedroom door
are
mentioned,
which,
eventually,
could be
verified
through the
reconstitution.
3) The establishment of a timeline and of a line of
effective
checking on
the minors
that were
left alone
in the
apartments,
given that,
if it is
believed
that such
checking was
as tight as
the
witnesses
and the
assisted
witnesses
describe it,
it would be,
at least,
very
difficult to
reunite
conditions
for the
introduction
of an
abductor in
the
residence
and the
posterior
exit of said
abductor
with a
child,
particularly
through a
reduced
width
window. It
is added
that the
supposed
abductor
could only
pass,
through that
window,
holding the
minor in a
different
position
(vertical)
from the one
that witness
Jane Tanner
saw
(horizontal).
4) What happened during the time lapse between
approximately
6.45/7 p.m.
- the time
at which
Madeleine
was seen for
the last
time in the
apartment by
a different
person
(David
Payne) from
her parents
or siblings
- and the
time at
which the
disappearance
is reported
by Kate
Healy - at
around 10
p.m.
5) The immediate appreciation of evidence, or in
other words,
the
fulfilment
of the
principle of
contiguity
of evidence
offers
obvious and
well known
advantages
to form a
conviction,
as firm as
possible,
about what
was seen by
Jane Tanner
and the
other
interposers,
and,
eventually,
to dismiss
once and for
all any
doubts that
may subsist
concerning
the
innocence of
the missing
child's
parents.
To achieve this according to the standards and
conventions
in force,
legal
procedures
were
instituted
and the
presence of
the
witnesses
was
requested,
inviting
them to
participate,
also
appealing to
solidarity
with the
McCann
couple, as
it is
certain that
since the
beginning
they adhered
to that
process
diligence.
Nevertheless, despite national authorities assuming
all measures
to render
their trip
to Portugal
viable, for
unknown
reasons,
after the
many doubts
that they
raised
about...
Page 23
...the necessity and opportunity of their trip were clarified several times, witnesses chose not to attend, which made the reconstitution impractical.
We believe that the main damage was caused to the
McCann, who
lost the
possibility
to prove
what they
have
protested
since they
were
constituted
"arguidos" 1 :
their
innocence in
relation to
the fateful
event. The
investigation
was also
disturbed,
because said
facts
remained
without
clarification
(...).
This 2
shows that
the parents
were not
persistently
worried
about their
children
[and] that
they didn't
check on
them like
they
afterwards
declared
they did,
rather
neglecting
their duty
to protect
those same
children,
although not
in a
temerarious,
or gross,
manner (...)
While the fact that Madeleine disappeared from
apartment 5A
of the
resort Ocean
Club is
inescapable,
the manner
and
circumstances
under which
this
happened are
unknown -
despite the
numerous
diligences
made on that
purpose -,
therefore
the range of
crimes that
were
conjectured
and referred
to during
the
investigation
remains
untouched
(...)
Concerning the other surmised crimes 3,
they are no
more than
that and in
spite of our
perception
that, due to
its high
degree of
probability,
the
occurrence
of a
homicide
cannot be
discarded,
such cannot
be more than
a mere
supposition,
due to the
lack of
supporting
elements in
the files.
It appears that the non involvement of the parents,
assisted
witnesses,
in any
penally
relevant
action stems
from the
objective
circumstances
of them not
being inside
the
apartment
when
Madeleine
disappeared,
from the
normal
behaviour
that they
displayed
until said
disappearance
and
afterwards,
as can be
amply
concluded
from witness
statements,
from the
telephone
communications
analysis and
also from
the
forensics'
conclusions,
namely the
reports from
the (Birmingham) Forensic Science Service (FSS) and
from the
National
Institute
for Legal
Medicine.
To this should be added that in fact none of the
clues that
led to their
constitution
as "arguidos"
was later
confirmed or
consolidated.
Let's judge
it: the
information
concerning a
previous
alert of the
media before
the police
was not
confirmed,
the residues
that were
marked by
the dogs
were not
corroborated
in
laboratory,
and the
initial
indications
from the
above
transcribed
email
4, better examined afterwards, that ended up appearing
to be
inconclusive.
Even if hypothesising that Gerald and Kate McCann
might be
responsible
over the
child's
death, it
would still
have to be
explained
how, where,
when, with
what means,
with whose
help and
where to
they freed
themselves
of her body
within the
restricted...
1 : An "arguido" is a formal suspect, against whom certain supported elements exist, but who is endowed with the presumption of innocence, a principal that here is fully realised. This statute is attributed, in order to establish the material truth, on suggestion of the police by the Public Ministry which assumes the responsability of doing do. The arguido(a) has, it is mandatory, to be assisted by a lawyer. In French an arguido is a "témoin assisté".
2 : The fact
that,
according to
Pamela F, a
child,
possibly Madeleine McCann,
had cried
during more
than an hour
on May 1.
3 :
"Crimes that
aren't
associated
to neglect".
4 : The email
on the
preliminary
DNA analysis
by the FSS
of the
samples
collected in
the car
hired by the
MCs.
Page 24
... time frame that would have been available for them to do so. Their daily routine, until the 3rd of May, had been circumscribed to the narrow borders of the Ocean Club resort and to the beach next to it, unknowing the surrounding and, apart from the English friends that were with them on holiday, they had no known friends or contacts in Portugal (…)
Tests and analyses were performed in two of the most
prestigious
and
credentialed
institutions
- the
National
Institute
for Legal
Medicine and
the British Forensic
Science
Service -,
their final
results
having
neither
positively
evaluated
the
collected
residues nor
corroborated
the dogs'
alerts.
In spite of all this, it was not possible to obtain
any evidence
that would
allow for a
average man,
enlightened
by criteria
of logics,
of norms and
of the
general
rules of
experience,
to formulate
any lucid,
sensate,
serious and
honest
conclusion
about the
circumstances
under which
the child
was removed
from the
apartment
(whether
dead or
alive,
whether
killed in a
neglectful
homicide or
an intended
homicide,
whether the
victim of a
targeted or
opportunistic
abduction),
nor even to
produce a
consistent
prognosis
about her
destiny and
inclusively
– and that's
the most
dramatic -
to establish
whether she
is still
alive or, as
it seems the
more likely,
she is dead.Therefore, everything having been examined, analysed and duly pondered, 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)...
Page 25
… 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,...
Page 26
... conviction and discipline regarding the institution to which I was proud to belong. My retirement will not extinguish these values, they'll go on being present in my life.
This book does not question the work of my
colleagues
in the
police or
compromise
the ongoing
investigation.
It is my
profound
understanding
that
revealing
all the
facts, in
this type of
work, could
jeopardise
future
operations,
critical for
the
discovery of
the truth.
However,
readers will
discover
data that
they ignore,
interpretations
of facts -
always in
the light of
law - and,
of course,
relevant
questions.
A criminal investigation compromises only with the
search for
material
truth.
It should not be concerned about political
correctness.
(pp. 11-12)
(…)
Many things were told so far - truths and lies - and
there was,
apart from
the duty to
provide
information,
disinformation
campaigns
aimed at
discrediting
the criminal
investigation
in
development
and those
who were
responsible
for it. For
me the
investigation
ceased to
exist on
October 2,
2007, when
it appeared
to have
outweighed a
new English
ultimatum on
the day of
the summit
on the
Lisbon
Treaty, so
nothing
surprised me
more. The
previous day
I had
attended an
nth media
spectacle,
the ultimate
forcing to
the thesis
of the
kidnapping
with the
disclosure
by the
McCann
family of a
sketch of a
suspected
abductor.
Nothing
surprises me
anymore.
- Do not pay attention. It's carnival.
We continued our convenient conversation, but I felt
that my
world had
like
collapsed
for good.
After hanging up, I spotted again the almond trees,
planted in
the hard
Algarvian
ground, a
soil that
could have
influenced
the corpse
concealment
strategy
and, I
thought,
wouldn't God
have dashed
in making
them bloom
in winter ?
(p.16) (...)
An investigation destined for shelving.
I have a feeling that with this statement, the
national
director
intends to
prepare the
public
opinion for
the
inevitable,
i.e for the
end of the
investigation
and the
shelving of
the case.
That seemed
to be the
strategy
adopted on
October 2
2007, which
was
consolidated
with the
execution of
tasks to
fulfil the
calendar, a
bit "for the
English
see". I
feared
immediately
for the
present
investigation
to be
questioned...
Page 27
...so as to facilitate a possible shelving. This investigation had come to undermine the image of the PJ, its inspectors and Portugal, and that's why perhaps it had to be discontinued.
The constitution of Kate Healy and Gerald McCann,
Madeleine's
parents, as
"arguidos"
should have
marked a
turnaround
in the
relationship
among the
police
forces and
the couple.
If, on the
Portuguese
police side,
the break
occurred, it
seems that
the same
cannot be
said of the
English
police.
There was an
agreement
between the
two police
forces to
move forward
in an
investigation
that was
seriously
considering
the
possibility
that the
child died
in the
apartment,
but suddenly
the English
police
veered
without
consistent
technical
explanation
- as we
shall see
further. We
have always
found it odd
the way the
couple were
treated,
even after
they got
their
arguido
status, and
their
eventual
access to
police
information.
I see the mentally investigation, the memories gush
cascaded.
I think mainly of this child about to be 4 years
old, who all
of a sudden
was denied
the right to
existence,
to become a
woman, to a
life of
happiness
and
potential
success in
the company
of her
family and
her friends,
that was
abruptly
lost.
Nothing
makes sense.
It seems
that
smothering
the facts by
decreasing
the strength
of any clue
is being in
preparation,
forgetting
the rights
of this
child and of
others too.
But who
wants such
an outcome ?
Who demanded
my removal
from the
operational
coordination
of the
investigation
? Who wants
to end the
status of
the McCanns
and Murat as
assisted
witnesses ?
Those who
insist on
the thesis
of the
kidnapping ?
Those who
claimed, and
later I will
say who they
are, that
people were
arrested for
much less in
England ? Or
those who
persist in
lying,
forgetting
the search
for the
material
truth ? The
possible
shelving of
the
investigation
and the end
of the
searches
certainly
favour
someone.
After leaving Portimão, October 2, 2007, I decided
to forget
this case.
It was
perhaps
better,
given the
powers that
seemed to be
involved.
If the authorities of the native country of the
child are
unwilling to
know what
happened to
her, feeding
the thesis
of the
kidnapping,
why should I
be concerned
? This is
not the
inopportune
(or induced
by the
journalist)
remark of a
police
director
(24) that
will erase
the existing
evidence (it
was not the
intent as
well), our
work is set
in the stone
of the
autos. Would
those be
destroyed in
order to
erase what
has been
done, even
then, we
still have
our memories
and the
memories of
those who
have carried
out with us
at arm's
length the
arduous task
of trying to
find the
material
truth (
pp.19-20)
(…) 
Page 28
Yes, a child has died. And I do not say it by value judgment, but by deduction based on the collection of information, hints and proven facts contained in the autos. (p.21) (...)
The caution of a decision
In Portimao I meet Chief Inspector Tavares de
Almeida, who
was part of
the team
which I
coordinated.
We have known each other since we entered the PJ.
The words of
the national
director
worry him,
he speaks of
an
investigation
request,
already
filed with
the national
director of
the PJ. He
says the
investigation
of our work
will restore
the truth.
During the five months investigation, we heard a
little of
everything ,
but we have
done our
job.
We remember what we have done, the efforts and,
honestly, we
are not sure
that others
could have
done better.
This is not
self-sufficiency,
it is
confidence
in the
rigour of
the work of
all police
officers
involved.
– Look ! These people 1,
do they know
how to sum
things up ?
How can one
speak of
precipitation
when the
McCann
became
assisted
witnesses
four months
after the
facts ? Do
not they
know the
principle of
non-self-incrimination
?
He was referring to the legal prohibition to take
the
testimony of
a person as
a witness to
the point
where that
person might
let know
facts that
would
eventually
incriminate
them. In
other words,
when someone
is about to
make
statements
on a
specific
case and
when, at
some point,
it appears
that this
person might
be involved
or
responsible
for the
practice of
an unlawful
act, this
person has
to be made
"arguido(a)".
So are
preserved
the rights
and duties
of citizens.
Curiously,
and contrary
to what we
see very
often in the
press,
especially
in the
English
media, the
arguido
status
protects the
(by lawyer)
assisted
witnesses,
since they
can keep
silent and
thus avoid
making false
statements -
as in the
case of a
simple
witness.
– I agree with you. If errors were made in this
investigation,
the delay in
changing the
status of
the McCanns
is one of
them. There
was too much
politics and
not enough
police.
– Well, I wouldn't go that far. The error was to treat
the couple
"with
tweezers".
Remember how
very soon we
saw that
many things
did not fit
and that the
McCanns were
entitled to
privileges.
That is not
normal !
(p.23)
1 : One could
imagine that
GA is
referring to
the
unfortunate
words (the
British
police was
following
the MC
instead of
maintaining
a critical
distance) that motivated, matter of diplomacy, his dismissal of the
case by the
national
director of
the PJ,
Alípio
Ribeiro, but
no, he
evokes the
suggestion
of
a precipitate
'arguido'
status made
by the
latter to
the
journalist
of the daily
Público on 02/02/2008, i.e
4 months
later.
Page 29
– 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,...
Page 30
... a fund that held more than 2 million pounds, would follow. The debate was open and, in fact, the assumptions pointed to the aggravated fraud or breach of trust crimes, but it did not belong to Portugal to investigate and judge such a crime. It belonged to the UK, as the fund was registered there. Our English colleagues became then aware of a harsh reality: the strong possibility of a crime to be investigated in their country, having the McCanns as possible suspects, a prospect that did not seem to please them. I noticed the sudden pallor that invaded their faces. (p.193) (…)
A disappearance , a window and a dead body
Reached this point, it is important to make a deductive synthesis of this case. In other words, reject what is false ; discard what you cannot prove for lack of sufficient evidence ; indicate as valid and established what was proven .
So :
1. The thesis of the abduction has been defended by Maddie 's parents since the first hour;
2. Within the group, only the parents claim to have seen open the window in the missing child's bedroom ; most (travelling companions) cannot reliably testify on this point, as they ran towards the apartment only after Kate McCann launched the alarm.
3. The only independent statement mentioning the open window and shutters was made by one of the Ocean Club nannies, Amy, who arrived at 22:20/30, pretty after the alert, turning hence her statement of no use for the crime time topic.
4. All statements and testimonies reveal numerous inaccuracies, incongruities and contradictions - some could even be described as false testimony. In particular the key-testimony for the abduction thesis, that of Jane Tanner, loses all credibility due to constant evolution which makes it ambiguous and disqualified .
6. There is a 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 :
... a fund that held more than 2 million pounds, would follow. The debate was open and, in fact, the assumptions pointed to the aggravated fraud or breach of trust crimes, but it did not belong to Portugal to investigate and judge such a crime. It belonged to the UK, as the fund was registered there. Our English colleagues became then aware of a harsh reality: the strong possibility of a crime to be investigated in their country, having the McCanns as possible suspects, a prospect that did not seem to please them. I noticed the sudden pallor that invaded their faces. (p.193) (…)
A disappearance , a window and a dead body
Reached this point, it is important to make a deductive synthesis of this case. In other words, reject what is false ; discard what you cannot prove for lack of sufficient evidence ; indicate as valid and established what was proven .
So :
1. The thesis of the abduction has been defended by Maddie 's parents since the first hour;
2. Within the group, only the parents claim to have seen open the window in the missing child's bedroom ; most (travelling companions) cannot reliably testify on this point, as they ran towards the apartment only after Kate McCann launched the alarm.
3. The only independent statement mentioning the open window and shutters was made by one of the Ocean Club nannies, Amy, who arrived at 22:20/30, pretty after the alert, turning hence her statement of no use for the crime time topic.
4. All statements and testimonies reveal numerous inaccuracies, incongruities and contradictions - some could even be described as false testimony. In particular the key-testimony for the abduction thesis, that of Jane Tanner, loses all credibility due to constant evolution which makes it ambiguous and disqualified .
6. There is a 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 :
Page 31
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.
Page 32
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...
Page 33
… 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.
The mystery remains, the former inspector believes
that one day
the truth
will be
known. For
now, we are
aware only
that on the
3rd May of
2007,
Madeleine
McCann
disappeared
in Praia da
Luz. She was
3 years old
and she was
a happy
child.
Page 34
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?
Page 35
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.
Page 36
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
Page 37
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'.
1 : The original document says "reconstituições", but the right word for what is meant is "reconstructions".
In Inquisitorial Justice Systems a reconstitution aims to recreate an event with the proper protagonists, in an attempt for the police forces to understand what happened.
It is quite different in Adversary Justice Systems where a reconstruction is the re-enacting of an event with actors and in front of cameras in order to jog the memory of the public. This is the case here.
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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).
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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
Unproven
Facts (the proven facts started on p.19)
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,
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,
1 : Those n° refer to the inquiry data basis.
2è partie ici.
