TRIBUNAL DA RELAÇÃO DE LISBOA (Lisbon Appeal Court)
Appeal 1454/09
1. Kate Marie Healy McCann, Gerald Patrick McCann, Madeleine Beth McCann, Sean Michael McCann and Amelie Eve McCann, the last 3 being minors and represented by their parents, 1st and 2nd Applicants, proposed against Gonçalo de Sousa AMaral, Guerra e Paz , Editores SA, V.C. – Valentim de Carvalho – Filmes Audiovisuais , SA e TVI – Televisão Independente, SA, actions under the form of process, subsequently attached and distributed to the Lisbon 1st Civil Section , requiring the conviction of the 1st defendant (1 R) to pay the applicants the total amount of €1.200.000, plus interest at legal rate since first citation, , as compensation for moral damages , stemming from the publication by the 1st defendant (1 R) , in book and DVD, of his version of facts regarding the disappearance of the minor Madeleine Beth McCann, here 3rd Applicant (3R), as well as the prohibition of sale, publishing or dissemination , by any of the defendants (RR), of the respective book and DVD.
All defendants (RR) contested the responsibility with which they are attributed, concluding for the dismissal of the action.
Having the trial taken place, the sentencing was pronounced , in which the action was considered partially upheld, being the first defendant sentenced to pay each of the 1st and 2nd Applicants (AA) the amount of €250.000 plus legal interest and prohibiting the 1st, 2nd and 3rd defendant (RR) to sell, develop new editions or transferring copyrights of the respective book and DVD – and acquit these defendants (RR) of the remaining requests and the 4rth applicant (R) of the totality of the request.
Not in agreement, the 1st, 2nd and 3rd defendant (RR), filed appeals with allegations that concluded with the issuing of the following conclusions:
Applicant (R) Gonçalo Amaral
– The book, documentary and interview mentioned in the present process (file) have as a main motivation the defence , by th e defendant (R) Goncalo Amaral , of his professional and personal honour.
– The writing and the publication of the book , as well as the documentary and the above mentioned interview, are within the scope of the constitutionally guaranteed rights by the European Convention of Human Rights and the Constitution of the Portuguese Republic, namely its articles 37 and 38.
– Such Rights, that under no circumstances, can be repealed by invoking any special reserve duty attributed to the appealing, just because he was an Inspector of the Judiciary Police , as it is proffered in the appealed decision.
– The respective content does not offend any of the fundamental rights of the Applicants (AA), being it in the reserve of their private life, within the scope and for the effects of articles 80 and 81 of the Civil Code, since it was actually the applicants that voluntarily limited/repealed that right by participating in multiple interviews and interventions in the media.
– Also , with regards to their good name and image, that the applicants by having disseminated the case in the public sphere giving it worldwide notoriety and, hence , opening all doors to all opinions, including those that are contrary to theirs.
– Also, regarding any guarantees of benefiting from the penal process , namely to a fair investigation and the right to freedom and safety , in the sense that the content of the aforementioned book, documentary and interview describe the facts constant in the investigation.
– Such facts, should be noted, were made available to the general public by the General Prosecuting Office (Procuradoria Geral da República) , that determined the creation of a digital copy of the inquiry process , with the exception of elements subject to total secrecy , and its delivery by requirement , to several people, namely journalists , which occurred.
– Having the contents of the aforementioned digital copy been disseminated, namely via the internet and known, commented and discussed publicly and universally.
– Therefore, there is no duty of reserve that can be imposed to the defendant (R) about facts that were disseminated and made public, namely of all the inquiry process.
– Being that duty of reserve nonexistent, the freedom of expression of the defendant (R) is dominant (greater) in comparison with the invoked rights of the appealed, as the verdict agreed up to the point of inserting that unusual duty of reserve.
– The actions of the defendant (R) are therefore not illicit within the scope and for the effects of article 483 of the civil code, deeming it not possible that he is sentenced to pay any damages and that he should be totally acquitted from the request formulated by the applicants (AA).
– Nor can he be prohibited of publishing, selling or disseminating the aforementioned book and DVD.
– It is also stressed that within the scope of the same norm , adding to the unlawfulness –that is not observed- that it would also be a requirement the proof of cause effect between the behaviour of the defendant (R) and the damages, worthy of mention, suffered by the applicants (AA) , which is totally dismissed if we pay attention to the replies given to article 11 and 16 of the instruction basis as well as to the respective motivation.
– Also noting that the statements constant in those articles present themselves more as conclusions rather than facts to bring to an instruction basis.
– Those conclusions, that are in no way based in any factuality, neither constant of this same basis nor in the points addressed in the articulated of the applicants (AA) .
– In case, however absurd, these are considered as such (damages of alleged facts, worthy of protection and in no circumstance caused by the book and DVD) the constant in articles 13 and 15 of the instruction basis –nothing else as classed as damages was proved - let it be said that the same are not true.
– In order to assess that falsity , and since the now appellant considers that such facts are not confirmed ,the re-appreciation of the recorded evidence will suffice, i.e. the statement of the witness Michael Wright , the statement of the witness Alan Robert Pike and the statement of the witness Angus Keith McBride.
– Such statements give evidence that, even before the publication of the respective book and documentary , identical theories and thesis to the defendant (r) circulated publicly, namely in the internet, and with the absolute knowledge of the applicants (AA) .
– Therefore, being truthful the feelings given as proved in the factual points discussed herein , being these of rage, despair, anguish , malaise or worry, namely what the children may come to think, the truth is that the reasons for the such feelings already existed before any intervention of the defendant (r) now appealing.
– The same can be stated to the insomnia and lack of appetite invoked.
– The court should note that all the witnesses are close to the AA, (family member, phycologist and lawyer) and that in their statements they clearly tried to minimise the theories predating the book and the documentary and, at the same time, naturally tried to give special emphasis to the impact of the book and DVD on the general wellbeing (mood)of the AA.
– This is especially so in relation to the witness Michael Terence Wright, who was in charge of assisting the Applicants (AA) in the dissemination of campaigns and monitoring/surveillance of some sites as well as of information present on the internet, after the disappearance of the minor Madeleine Beth McCann.
– This witness , during the process of summary and critical analysis of the main witness statements , was discredited (and correctly ) by the court since he brought hand written notes with him to court , where one can read, in an almost perfect chronological order , the topics for the replies to the questions that were put to him in the final audience.
– On the contrary, this witness’ declarations against the defendant (r) now appealing, must be specially considered by the court ,when the witness, quite displeased, accepts, that prior to the book and the documentary ,the theories adverse to the McCann’s were already in circulation.
– This without prejudice to the facts that one can state that it is not comprehensible why these facts , here contested , were not decided as not proved in the appealed verdict, when , as may be observed, in the motivation relative to question to article 13 of the instruction phase explicitly concluded that : “Art. 13 – The reply to the constant facts in articles 12 and 13 cannot ignore the assertion ( that one considers elementary based in common experience rules) , that more than any theory or opinion about the causes of the disappearance of Madeleine Beth McCann, it is the fact of her disappearance that dominates in negative terms , the emotional and psychological wellbeing of the applicants ( AA), her parents. That negative emotional state pre-dates the book, the documentary and the interview constant in the declarative action and should not be confused with the specific psychological consequences of those concrete events”.
– Hence, deciding in that way, the appealed verdict incurred in a flagrant unconstitutionality by substantive violation of the comprehended in article 37 of the CRP (Constitution of the Portuguese Republic) and in article 10 of the European Convention of Human Rights, frontally opposing the dominant jurisprudence of the European Court for Human Rights regarding this issue.
– The requisites for the referred convictions are not fulfilled , neither regarding the existence and materialisation of any rights of the appealed nor regarding their serious harm or / threat of harm which, even if these existed – and they do not exist- would never dominate the right to freedom of speech and the right to an opinion of the Appealing.
– Moreover, the appealed decision violates article 483 of the Civil Code, since that no damages resulted to the appealed (AA) from the actions of the Appealing.
– In this scope, the appealed verdict should be revoked , deeming the declarative action completely unfounded as not proved and with the consequent acquittal of the defendant (R) with regards to all the procedures issued against him, recognising his constitutional right to an opinion and his freedom of expression.
RR Guerra e Paz, Editores, SA, e Valentim de Carvalho, SA
– We live in a democratic and rule of law State, set on the principles of pluralism of expression which consecrates the freedom of thought and its free expression , where, moreover, we should all contribute to enrich culture by the publication of books and documentaries.
– The fame and notoriety the applicants achieved in Portugal and worldwide is undeniable. The applicants can’t allow media interviews , including in the intimacy of their home, when these are favourable to them and then prohibit the publication of books and even comments , about public facts when allegedly these can be unfavourable to them.
– Therefore, the scope of the private life of the applicants, because of their notoriety or by their own choice, must be considered reduced, namely within the scope of No. 2 article 80 of the CC.
– The current files are composed of two autonomous actions: A declarative action of condemnation against the defendant (R) Gonçalo Amaral requesting, namely the payment to the applicants of compensation in the amount of €1.200.000; and an annexed action , based on the same facts and groundings , the applicants (AA) required the several defendants (RR) were convicted in the conducts referred to in points I to VII of the verdict.
– The appealed verdict considers as relevant to analyse if the book written by the co-defendant (co-R), the documentary and the interview are illicit /anti juridical within the scope of article 484 of the Civil Code , if there were damages, what is the amount of the their compensation and if the submitted requests in the annexed action are adequate to the removal of the illicit effects committed.
– The appealing consider that they are not obliged to assure the defence of the co defendant (co-R) Gonçalo Amaral , however the manner in which the verdict is built obliges them to do so .
– The author of the book “Maddie, the Truth of the Lie” , the co-defendant (co-R) Gonçalo Amaral was an investigator in the case of the disappearance of Madeleine McCann , having been the target of repeated personal and professional attacks by the applicants (AA) in the national and international media.
– Hence the book must also be analysed as the legitimate exercise of the co-defendant (co-R) Gonçalo Amaral of the right to defend his honour and good name that had been offended by the appealed.
– Point 43 of proved facts , of the appealed verdict, mentions the statement made by the appealing VCF:” The mystery persists, the former inspector believes that one day the truth will be known. For now we only know that on the 3rd of May 2007, Madeleine McCann disappeared in Praia da Luz. She was 3 years of age and she was a happy child”.
– The appealed verdict analysis the duty of reserve than an investigator is obliged to, but these only exist for those still in service, which is not the case of the co-defendant (co-R) Gonçalo Amaral.
– Without prejudice, the breach of the duty of reserve is not eligible to offend the good name and reputation of the appealed, since the judicial value that it protects is the administration of justice.
– The appealed verdict laid down that in the referred conflict of rights resolution , the illegality of the co-defendant Gonçalo Amaral’s conduct is revealed, within the scope of article 484 of the civil code, which does not merit accordance.
– Within the scope of article 334 of the Civil Code, the exercise of a right is only illegitimate if the right holder manifestly exceeds the limits of good faith, which was not the case.
– The conflict of rights must be decided in accordance with the principles contemplated in article 335 of the civil code and it is not possible, through its resolution, to assess a conduct as illicit.
– Hereby the illegality of any fact by the co-defendant Gonçalo Amaral, was never effectively known in the issued verdict , which deems it void within the scope of item d), of number 1, article 615 of the CPC (Civil Process Code).
– The same is also verified with the remaining points enumerated in art 483 of the CC, that were not analysed where they concern the co-defendant (co-R) Gonçalo Amaral and even less analysed was the cause effect link between the statements made by the co-defendant Gonçalo Amaral in the book and documentary and the supposed damages suffered by the appealed , even because all these were dispersed in time.
– Here was no ponderation if the alleged incurred damages by the appealed directly and necessarily resulted from the declarations issued by the co-defendant (co-R) Gonçalo Amaral in the book and documentary or rather that they were caused by the facts reported in these, i.e by the disappearance of Madeleine McCann, because they were made arguidos and the object of unfavourable news due to that fact, both nationally and internationally.
– Being these facts public and notorious, they require no allegation or proof, within the scope of article 412, No.1 of the CPC , but even so they were alleged by the appealing.
– In light of the facts deemed not proved under points j) and k) and the amount that courts award to the damage in cases of death, the attribution of compensation in the total required amount by the appealed is unfair, even because of the economic conditions of the applicants and the defendants.
– The several requests issued by appealed in the annexed action are only mentioned in section IV of the verdict.
– The current files /process regard the book “Maddie, A Verdade da Mentira”, by the author co-defendant Gonçalo Amaral and edited by this publisher –points 16 to 22 of the proved facts-which publishing contract was agreed between the appealing GeP on the 10/3/2008 and the work published on the 24/7 of that same year.
– The appealing VCF celebrated and agreement with the co-defendant Gonçalo Amaral, designated “ Option of rights – Deal Memo” on the 07/03/2008, with view to the audio-visual adaptation of a book about the investigation of the disappearance of (MBM) in Praia da Luz – point 35 of proved facts of the appealed verdict . The deal materialised on the dates and conditions of the constant in points 36 to 38 of the proved facts.
– Within the scope of article 5, no. 1 of the CPC, it is the parties that are to allege the essential facts that form the cause of the requesting, but the judge is not subject to the parties allegations, as to the questioning, interpretation and application of the norms of law, as stipulated by article no. 3.
– The initial petition that originated the current action, where it regards to the appealing does not contain facts that fulfil the requisites the principles enumerated in no. 2 of article 70 of the CC.
– Such legal instrument conveys that the threatened or offended person may require the adequate measures to the circumstances of the case, with an aim to avoid the concretization of the threat or to minimise the effects of the offence already committed.
– The aforementioned book was published by other publishers in several countries –point 28 of the proved facts.
– A Portuguese and an English version of the aforementioned book circulate on the internet without the permission of the appealing, in proved facts.
– On the other hand, the Portimão Public Prosecutor, determined a creation of a digital copy of the enquiry process, delivered it via formal request, having the files been disseminated via the internet –points 65 and 66 of proved facts.
– “The facts relative to the criminal investigation into the disappearance of Madeleine McCann that the defendant (R ) Gonçalo Amaral refers in his book, in his interview to correio da Manhã and in the documentary are, in their majority, facts that occurred and were documented in that investigation (articles 27 and 28 of the instruction base)”- art. 80 of the proved facts.
– Even with the issued prohibitions and being the appealing unable to prevent it , the book in English and Portuguese versions and the documentary are illicitly and against the will of the detainers of the respective copyright of publishing and transmission, circulate on the internet , the criminal investigation files opened after the disappearance of Madeleine McCann are also available.
– It was considered as not proved that the appealed are totally destroyed , in a morally, socially, sentimentally and family, well beyond the pain that the absence of their daughter causes them -point j) of not proved facts in the appealed verdict.
– Finally , for the application of the petitioned measures, the appealed verdict considered that the 3 defendants (RR) constituted themselves as vehicles of the illicit committed by defendant Gonçalo Amaral , by this being passive subjects of the measures that under no. 2, art 70 of the CC should be ordered , referring that it is important to analyse each of the petitioned measures in details and to verify on a case base basis if these are legal, adequate and proportional to the concrete case and who are the intended receivers of the same .
– What is certain is that the appealed verdict did not analyse them , nor did it validate them, de facto or by point of law as required by article 158 of the CPC, which deems the verdict with nullity within the scope of al b), no. 1 of article 615 of the CPC.
– And in this manner, without any grounds , it was determined that the prohibition of sale and the order for the removal of the books for delivery to the applicants (AA), consecrate the attributes invoked and should be directed to the defendant Gonçalo amaral and the appealing GeP.
– The prohibition of the execution of new editions of the book or DVD, as well as the transfer of publishing rights and author rights is adequate, it should be directed against the defendant (R ) Gonçalo Amaral and the appealing .
– In the concrete case , after the injunction that determined part of the measures then granted , it had already been decided that : “The Injunction ordering the apprehension of the book must not be granted, the book has as its main motivation the defence of the personal honour of the police inspector in charge of the investigation of a certain crime, in which he convey his interpretation of the indicia gathered in that investigation and made public by the competent authorities , being that the petitioners voluntarily limited their right to intimacy by profusely disseminating the respective case via the media” – AC TRL, 14/10/2010, in dgsi.pt
– In light of these facts declared as proved in points 30 and 63, the measures issued are inadequate and do not minimise the effects of the alleged offence.
– The setting of the compulsory pecuniary sanction in the amount of €50.000 has also not been grounded and it is excessive and disproportional.
– The verdict suffers from nullity within the scope of als b) and d) of no. 1 of article 615 of the CPC , and should be revoked , acquitting the appealing of the measures ordered , with all the legal consequences.
– And, because the issued decision violated, namely articles 37, 38 and 42 of the CRP, 5, 158 and 615 of the CPC, 334and 335 of the CC and 19 of the Declaration of human Rights .
In counter-allegations, the appealed have pronounced themselves in favour of the confirmation of the trialled case.
Gathered the legal, requirement to decide.
2. The following factual matter was considered as proved in first Instance (court)
1. The applicants KM and GM are married to each other
2.The applicant Madeleine Beth McCann was born on the 12.05.2003 and is the daughter of the applicants Kate and Gerry McCann
3.The applicant Sean McCann was born on the 01.02.2005 and is the son of the applicants Kate and Gerry McCann
4. The Applicant Amelie MCCann was born on the 01.02.2005 and is the daughter of the applicants Kate and Gerry McCann
5. The Applicant Madeleine Beth McCann has been missing since the 3rd of May of 2007, and the criminal investigation n. 201/07.0GALGSwas open by the General Prosecution of the Republic for the Portimão District.
6. The British Police Dogs “Eddies” and “Keela” detected human blood and cadaverine in the apartment 5A, Ocean Club
7. The British Police Dogs “Eddies” and “Keela” detected human blood and cadaverine in a vehicle rented by the Applicants after the disappearance of MBM.
8. The Applicants Kate and Gerry McCann were constituted arguidos in the scope of the police investigation
9. Pages 2587-2602 of the criminal investigation, 19.07.2007, chief Inspector Tavares de Almeida wrote a report in which the following section can be transcribed :
“From everything that was gathered, the facts point in the direction that the death of Madeleine McCann occurred, on the night of May 3rd of 2007, inside the apartment 5A, of the Ocean Club resort, occupied by the couple McCann and by their three children;” (...)
“From everything that was exposed from the AUTOS, we conclude that:
A) The minor Madeleine McCann died in the apartment 5A of the Ocean Club resort, on the night of May 3rd of 2007;
B) It was performed a simulation of kidnapping;
C) In order to avoid the death [alarm] of the minor before 22H00, it was created a situation of the children's surveillance by the McCann while the children slept;
D) Kate McCann and Gerald McCann are involved in the occultation of the cadaver of their child Madeleine McCann;
E) At this moment, there seems that there aren't strong indicia that the death of the minor didn't happen due to a tragic accident;
F) From what was obtained until now, everything points out that the McCann, as self-defence, didn't want to deliver immediately and voluntarily the cadaver, existing a strong possibility that the same was transported from the initial place of deposition. This situation is susceptible to raise questions about the circumstances under which the death of the minor occurred.
So we suggest that the 'Autos' be sent to the EX.mo Sr. Procurador Geral da República [General Attorney], in order to:
G) New interrogation of the Arguidos Kate and Gerry McCann;
H) Evaluation of the measure of restraint to be applied in this case;” Pages 2601 of criminal Investigation
10. Page 2680 of the criminal investigation, 10 September 2007, public prosecutor in charge of the case:
“In the course of the investigation, where one continues to investigate the disappearance of Madeleine McCann , being the investigation open whether to confirm or infirm its occurrence, in relation to the crimes of abduction, homicide, abandonment and concealment of body and as per our drafted plan, it is necessary to document the real time of said disappearance, find out the precise location of each of the intervenients at the time of the events and also in the time after the events –the McCann couple and their group of friends that were on holiday with them in the tourist apartments Ocean Club in Praia da Luz: Jane Michelle Tanner, Russel James O’Brien, Matthew David Oldfield, Rachael Marianna Jean Manpilly, David Anthony Payne, Fiona Elaine Payne and Diana Webster . There is also a need to determine the movements of the arguidos Kate and Gerry McCann for the time of their stay in Portugal while establishing all the connections between all the intervenients and third parties. In this sense, and because the diligences that will be pointed here are essential to finding the truth, namely to analyse the telephone activity of the McCann couple and their friends, as well as other telephone numbers, that has been established was related to the facts occurred on the night of the 3rd of May 2007, remit the official file to the Mmo. JIC”
11. Page 3170 of the criminal investigation, 03.12.2007 by the Criminal Instruction Judge of Portimão
“ Since in the current criminal investigation files the crimes of abduction, homicide, abandonment and concealment of a body are being investigated being the first 3 crimes punishable with sentencing superior to 3 years and because it necessary to identify the suspicious behaviour observed in th surroundings of the place where the child disappeared from and mentioned in pages 3150 and 3154 and following of the case files , having so a high importance to the discovery of the truth , the data requested by the Public Ministry I order that (...) is requested from operator Portugal Telecom (...)” Point AV of the proved facts.
12. The Defendant Gonçalo Amaral was the Inspector of the Judiciary Police in charge of the coordination of the investigation into the disappearance of the applicant MBM. Amaral
13. The defendant Gonçalo Amaral retired from the police force on the 1st July 2008 (art 19 Base Instrutória)
14. on the 21st July 2008 the General Prosecution of the Republic divulged a note to the media announcing the archiving of the criminal investigation and that the same could be reopen by the initiative of the Public Ministry or any interested parties if new elements of evidence that would lead to pertinent diligences (article 20 of Base Instrutória) .
15. In the archiving report, 21.07.08:
“ Taking into account that there were certain points in the arguidos' and witnesses' statements that revealed, apparently at least, contradiction or that lacked physical confirmation, it was decided to carry out the "reconstruction of the fact", a diligence that is consecrated in article 150 of the Penal Process Code in the sense of duly clarifying, on the very location of the facts, the following very important details, among others:
1 – The physical, real and effective proximity between Jane Tanner, Gerald McCann and Jeremy Wilkins, at the moment when the first person walked by them, and which coincided with the sighting of the supposed suspect, carrying a child. It results, in our perspective, strange that neither Gerald McCann nor Jeremy Wilkins saw her, or the alleged abductor, despite the exiguity of the space and the peacefulness 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 seemed then 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 arguidos 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 the child, namely through a window with scarce space. 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 her 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 obvious and well-known advantages of immediate appreciation of evidence, or in other words, the fulfilment of the principle of contiguity of evidence in order 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.
In this sense, the legal procedures were followed, according to the norms and conventions that are in force, and the appearance of the witnesses was requested, inviting them to be present inclusively 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 motives, after the many doubts that they raised about the necessity and opportunity of their trip were clarified several times, they chose not to attend, which rendered the diligence inviable.
We believe that the main damage was caused to the McCann arguidos, who lost the possibility to prove what they have protested since they were constituted arguidos: their innocence towards the fateful event; the investigation was also disturbed, because said facts remain unclarified.”(...)
“This 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 guard those same children, although not in a temerarious, or gross, manner” (...)
“While it is an unavoidable fact that Madeleine disappeared from Apartment 5A of the 'Ocean Club', the manner and circumstances under which this happened are not – despite the numerous diligences made in that sense -, therefore, the range of crimes that were indicated and referred to during the inquiry remains untouched.” (...)
“Concerning the other indicated crimes, they are no more than that and despite 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 sustaining elements in the files.
The non involvement of the arguidos parents of Madeleine in any penally relevant action seems to result from the objective circumstances of them not being inside the apartment when she disappeared, from the normal behaviour that they adopted until said disappearance and afterwards, as can be amply concluded from the witness statements, from the telephone communications analysis and also from the forensics' conclusions, namely the Reports from the FSS and from the National Institute for Legal Medicine.
To this can be added that, in reality, none of the indications that led to their constitution as arguidos was later confirmed or consolidated. If not, let us see: the information concerning a previous alert of the media - before the police - was not confirmed, the traces that were marked by the dogs were not ratified in laboratory, and the initial indications from the above transcribed email, better clarified at a later date, ended up being revealed as innocuous.
Even if, hypothetically, one could admit that Gerald and Kate McCann might be responsible over the child's death, it would still have to be explained how, where through, when, with what means, with the help of whom and where to they freed themselves of her body within the restricted time frame that would have been available to 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 that lies next to it, unknowing the surrounding terrain and, apart from the English friends that were with them on holiday there, they had no known friends or contacts in Portugal.” (...)
“- Tests and analyses were performed in two of the most prestigious and credentialed institutions for this effect – the National Institute for Legal Medicine and the British lab Forensic Science Service -, whose final results did not positively value the collected residues, or corroborated the canine markings;”(...)
“- Despite all of this, it was not possible to obtain any piece of evidence that would allow for a medium 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 all seen, analysed and duly pondered, with all that is left exposed, it is determined:
b) The archiving of the Process concerning arguidos Gerald Patrick McCann and Kate Marie Healy, because there are no indications of the practise of any crime under the dispositions of article 277 number 1 of the Penal Process Code.” (...)
16. The defendant Guerra e Paz , Publishers is a commercial society and its activity consists of editing, publishing, trading, including import and export of books.
17. On the 10th March 2008 the defendant, Guerra e Paz Editores, SA and the defendant Gonçalo Amaral signed a written agreement, add pages 277-281, designated contract for transfer of author rights through which the defendant Gonçalo Amaral gave the exclusive right to publish the text “Madeleine, the Truth of the Lie “ exclusively for ten years, in the form of a book, printed or electronic, in any language and in the whole world.
18. Clause 4, n1 of this agreement states the following: “ The retribution to be paid by the 1st party to the 2nd party for author rights relative to the editions of the work to be commercialised in Portugal will be of:
a) 12% of the cover price of each copy sold, net of VAT, up to 30.001 copies. B) 14% of the cover price of each copy sold, net of VAT, from 30.001 to 50.000 copies. C) 16% of the cover price of each copy sold, net of VAT from 50.001 copies sold.
19. Clause 5, n2 of this agreement states the following: “If the first party sells the copyright to other languages, in any country in the world and after deducting the costs inherent to that sale, the net income from that sale will be divided in equal parts between the 1st and 2nd parties, ie 50% each.
20. The defendant Gonçalo Amaral is the author of the book “Maddie , the Truth of the Lie”, published by Guerra e Paz , Editores SA.
21. The cover of the book has the word “confidential” written in red and in the inside cover “Reserved Reading” and “contains unique revelations” .
22. The technical summary of the book, page 4, has the following data: Revision :Fernanda Abreu. Cover and Pagination: Ilidio J.B. Vasco. Photograph of the author: Sandra Sousa Santos. C Guerra e Paz Editors , SA, 2008, All rights Reserved. Cofina media for photographs by Nuno Costa.
23. From the book “Truth of the Lie” (Intro to the Book pgs 11-12, pages 16, pages 19-20, pages 21, page 22-24, page 193pages 220-221) all quoted. –
(Translator: I won’t transcribe them here since it is a long text and one can consult the book to read relevant passages)
24. Conclusion of GA’s Book (pages 220-221)
25. The book “Maddie , the Truth of the Lie” was launched on the 24th July 2008, in El Corte Inglès, in Lisbon.
26. On the day of its launch, 24.07.08, the book was also sold with the newspaper Correio d Manhã.
27.The book “Maddie , the Truth of the Lie” had the following editions in Portugal:1st edition in July 2008, 30.000 copies printed 2nd; July 2008, 10.000 copies printed; 3rd July 2008, 10.000 copies printed; 4rth July 2008, 30.000 copies; 5th August 2008, 25.000 copies; 6th August 2008, 10.000 copies; 7th, August 2008, With 15.000copies printed; 8th, August 2008, 10.000 copies; 9th August 2008, 10.000 copies; 10th, August 08, 10.000 copies;11th August 08, 10.000 copies; 12th, 2008 10.000 copies printed.
28. The book was published through other editors in the following countries: Spain, September 2008, with the possible trading in Spanish in South American Spanish speaking countries; Denmark, November 2008, with possible commercialisation in other Nordic countries; Italy , December 2008, with the commercialisation in Italian for all the world; Holland, April 2009, with commercialisation in Dutch for all the world; Germany, June 2009 with commercialisation in Austria and Switzerland.
29. Within the scope of the injunction attached there were only around 7.000 copies of the book delivered to the applicants legal representative.
30. Copies of an English and Portuguese version circulate in the internet without the authorization of Guerra e Paz, Editores SA.
31. The cover price of the book “Maddie the Truth of the Lie” in Portugal was determined by the defendant Guerra e Paz on the amount of 13.33 euros (thirteen Euros and thirty three cents) , Inclusive of VAT.
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.
33. The defendant Gonçalo Amaral, received the following amounts from teh sale of the book: 2008 and 2009, teh amount of 342,111.86 .
34. The defendant, VC Valentim de Carvalho is a commercial society that creates, develops, produces and promotes the exhibition and broadcast of cinematographic and audiovisual works.
35. On the 7th March 2008, teh defendant Gonçalo Amaral and the defendant Valentim de Carvalho signed a written agreement (add pages 282-283) designated concession of rights - Option of Rights – deal demo” through which the defendant GA gave 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 Valentin de Carvalho signed a written agreement (284-288) , designated “passing of Rights - Option contract” through which the defendant GA gave the defendant VC the right to adapt the book to documentary and/or fiction that may have the format of a film for cinema or a TV movie
37. Clause 2 of this agreement has states the following: By the transfer of these exclusive right of option, VC Films compromises to pay the author the gross sum of 25.000, subject to legal fees and added VAT.
38. Clause 4, the author is obliged to participate as a narrator, transferring all image and sound rights. 2 For that participation and transfer patrimonial content of author rights connected to VC films the author will receive the gross sum of 15.000 euros, subject to legal fees. 3. For the transfer of rights named in 2 the author will receive 10% of all receipts national or international of the trading of the documentary (in all platforms and supports invented or yet to be invented) after deduction of production costs.
39. The defendant V.C- Filmes , Audiovisuais, SA agreed with VC Multimedia SA, on the 6th June 2008, to transfer to the latest all trading, distribution and exhibition and broadcast of cinematographic and audiovisual works (film, miniseries, documentaries) that they intended to produce within 5 years.
40. The defendant VC produced the documentary “Maddie , The Truth of the lie” , produced by Carlos Coelho Silva , which is an adaptation of the book written by the defendant GA. I have attached such documentary to the files.
41. At the beginning of the documentary, the defendant Gonçalo Amaral states the following: -“ My name is Gonçalo Amaral and I was a police investigator for the Judiciary Police for 27 years. I co-ordinated the investigation of 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”
42. At the end of the documentary, the defendant Gonçalo Amaral states the following: -“ What I know tells me that Madeleine McCann died in apartment 5A on teh 3rd of May 2007. I am certain that this truth will one day be verified. The investigation was brutally interrupted and there was a hasty political archival .There is some who hide the truth but, sooner or later, the varnish will crack and the revelations will surface. Only then will there be justice for Madeleine MCCann.”
43. The defendant, Valentin de Carvalho –filmes Audiovisuais, SA concludes the documentary with this statement: -“The mystery goes son, the former Inspector believes that one day the truth will be known. For now, we only know 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”
44. In the sequence of deliberations on the 27th October 2008, an increase was registered in the share capital of the defendant Valentim de CArvalho - Filmes Audiovisuais SA , which was registered on the 28th September 2009, where by the capital of the company was held in teh proportion of 60% by Estudios Valentim de Carvalho- Gravações e Audiovisuais , SA and 40% by Fundo de Investimento para o Cinema e Audiovisual.
45. On the 13th April 2009 and on the 12th May 2009 the documentary was broadcast by the defendant TVI-Televisão Independente SA.
46. Before the documentary’s broadcast, the defendant, TVI-Televisão Independente SA issued the following statement: “The following programme is a documentary based on the book by Gonçalo Amaral, former PJ Inspector that investigated the disappearance of Madeleine McCann in the Algarve. His version of events is denied by Maddie’s parents that continue to insist this was abduction. The criminal investigation carried out by the Portuguese Authorities ended with the investigation archival, a decision contested by Gonçalo Amaral. More than to find those responsible, a task for the justice system, the broadcast of this documentary aims at shedding some light and provide facts that may contribute to understand a case that remains a mystery for almost two years.
47. At least two million and two hundred thousand people watched the programme broadcast on teh 13.04.2009.
48. The defendant Gonçalo Amaral gave an interview to the newspaper “Correio da Manhã” , conducted by the journalists Eduardo Dâmaso and Henrique Machado, published on the 24th July 2008. Its contents totally reproduced and placed on the front page that contain the following statements attributed to GA: (Link to interview in English attached, since the same is transcribed fully) http://www.mccannfiles.com/id129.html ( look for CM inteview translated by Joana Morais, 24th July 2008)
49. The defendant Gonçalo Amaral issued the above mentioned affirmations.
50. The defendant Gonçalo Amaral gave interviews to the defendant TVI-Televisão Independente SA on the 16.05.2009 and on the 27.05.2009.
51. By the end of April 2009, the documentary went on sale in DVD witht he title “Madeleine the Truth of The Lie” - A Powerful Documentary based on teh best seller “ The Truth of the Lie” by Gonçalo Amaral.
52. The above mentioned DVD was edited and the edited copies were traded by Valentim de Carvalho Multimédia SA through agreement with Presselivre, Imprensa Livre SA
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.
55. In the video cover the Word “confidential” is written in red.
56. The DVD was sold by Sociedade Presselivre, Imprensa Livre SA as an insert with he newspaper owned by the same company Correio da Manhã at the price of 6,95Euros (six euros and ninety five cents, inclusive of VAT.
57. To this current date, the documentary was reproduced only once to be edited, published and traded in Portugal in its video format.
58. The reproduction and editing of the documentary in video format were authorised by “Valentim de Carvalho Multimédia SA to the company Presslivre-Imprensa Livre SA, proprietor of the newspaper Correio da Manhã, as per the contract celebrated between the two.
59. In the terms of the contract, the DVD’s covers and packaging would be produced by the company presslivre-imprensa livre SA, to be distributed with the newspaper Correio da Manhã.
60. All registration and edition classification with IGAC would be carried out, as it was, by Valentim de Carvalho Multimédia and the costs to be supported, as they were, by Presselivre.
61. The documentary DVD was distributed for sale with the printed copy of the newspaper Correio da Manhã.
62. The defendant Gonçalo Amaral received 40.000 euros (forty thousand Euros =for the sale of the DVD in 2008.
63. The documentary was reproduced and inclusively subtitled in English by third parties that divulged it on the internet without the permission and against the will of the defendant VC-Valentim de Carvalho –Filmes, audiovisuais SA .
64. The illicit reproduction is prejudicial to the copyrights of the defendant VC- Valentim de Carvalho –Filmes, audiovisuais SA held on the documentary and also for the trading of the DVD since any citizen can access the DVD at the distance of a click.
65. The General Prosecution of The Republic in Portimão determined a digital copy of the criminal investigation , with the exception of files protected by absolute secrecy, and its delivery via a request to people, namely including journalists.
66. The contents of that digital copy was divulged, namely on the internet, having been known, commented and discussed publically and universally.
67. The applicants Kate McCann and Gerald McCann alerted the press to the disappearance of their daughter.
68. The applicants Kate McCann and Gerry McCann gave an interview to the Nroth American TV programme “Oprah” , presented by Oprah Winfrey and revealing the existence of new witnesses , reconstructions and E-Fits.
69. The Oprah Winfrey interview was broadcast to the whole world via satellite and cable TV.
70. This interview in the progamme Oprah was broadcast in Portugal by SIC on the 09.05*2009 and on the 12.05.2009.
71. The applicants Kate McCann and Gerald McCann , in co-operation with the British TV Channel “Channel 4” , produced a 60 minutes documentary about their daughter’s disappearance, called “Still Missing Madeleine”
72. On the 15/04/2009 , the defendant TVI – Televisão Independente SA, signed a pre agreement aiming at the licencing of the broadcast of the documentary “Still Missing Madeleine” for 35.000 Euros.
73. The applicants Kate McCann and Gerald McCann ordered that the documentary “Still Missing Madeleine” was not given to TVI-Televisão Independente SA.
74. The documentary “ Still Missing Madeleine” translated in Portuguese to “Madeleine, dois Anos de Angústia” , was broadcast by SIC on the 12.05.2009
75. On the 17.10.2007 , Clarence Mitchell , spokesman for the applicants Kate McCann and Gerald McCann , stated that the applicants were sufficiently realistic to admit that their daughter was likely dead.
76. The events surrounding the disappearance of Madeleine McCann and the investigation into her disappearance generated extraordinary public interest. As did the diligences carried out to try and establish what took place , the evolution and vicissitudes , including the constitution of Kate McCann and Gerald McCann as arguidos in the criminal instruction process and the removal of the defendant Gonçalo Amaral from the investigation that had been carried out under his coordination.
78. The so called “Maddie Case” has been extensively scrutinised in the Portuguese and international societies being it in the press or in books , such as the books by Paulo Pereira Cristóvão, Manuel Catarino and Hernâni Carvalho.
79. The so called “Maddie Case” was commented by Dr Francisco de Moita Flores , former Inspector, criminologist and commentator in several media. FMF made such statements as per his professional qualifications.
80. The facts of the criminal investigation that the defendant Gonçalo Amaral refers in his book, interview to the newspaper “Correio da Manhã” and in the documentary are, in its majority , facts that occurred and are documented in the said investigation.
81. As a consequence of the defendant Gonçalo Amaral’s statements in the book, documentary and interview to Correio da Manhã the applicants Kate McCann and Gerald McCann felt anger , despair , anguish ,worry and also insomnia as well as lack of apetite .
82. The same applicants feel unease , because the people who believe the defendant’s theory about the disappearance think they are responsible for the concealment of their daughter’s body and simulating her abduction.
83. The applicants Kate McCann and Gerald McCann feel the need , with extreme worry, to keep their younger children from knowing the theory referred in the number above.
84. Sean and Amelie McCann went to school in August 2010 but have not yet have any knowledge of the defendant Gonçalo Amaral’s theory, also referred in the same number .
Appeal 1454/09
1. Kate Marie Healy McCann, Gerald Patrick McCann, Madeleine Beth McCann, Sean Michael McCann and Amelie Eve McCann, the last 3 being minors and represented by their parents, 1st and 2nd Applicants, proposed against Gonçalo de Sousa AMaral, Guerra e Paz , Editores SA, V.C. – Valentim de Carvalho – Filmes Audiovisuais , SA e TVI – Televisão Independente, SA, actions under the form of process, subsequently attached and distributed to the Lisbon 1st Civil Section , requiring the conviction of the 1st defendant (1 R) to pay the applicants the total amount of €1.200.000, plus interest at legal rate since first citation, , as compensation for moral damages , stemming from the publication by the 1st defendant (1 R) , in book and DVD, of his version of facts regarding the disappearance of the minor Madeleine Beth McCann, here 3rd Applicant (3R), as well as the prohibition of sale, publishing or dissemination , by any of the defendants (RR), of the respective book and DVD.
All defendants (RR) contested the responsibility with which they are attributed, concluding for the dismissal of the action.
Having the trial taken place, the sentencing was pronounced , in which the action was considered partially upheld, being the first defendant sentenced to pay each of the 1st and 2nd Applicants (AA) the amount of €250.000 plus legal interest and prohibiting the 1st, 2nd and 3rd defendant (RR) to sell, develop new editions or transferring copyrights of the respective book and DVD – and acquit these defendants (RR) of the remaining requests and the 4rth applicant (R) of the totality of the request.
Not in agreement, the 1st, 2nd and 3rd defendant (RR), filed appeals with allegations that concluded with the issuing of the following conclusions:
Applicant (R) Gonçalo Amaral
– The book, documentary and interview mentioned in the present process (file) have as a main motivation the defence , by th e defendant (R) Goncalo Amaral , of his professional and personal honour.
– The writing and the publication of the book , as well as the documentary and the above mentioned interview, are within the scope of the constitutionally guaranteed rights by the European Convention of Human Rights and the Constitution of the Portuguese Republic, namely its articles 37 and 38.
– Such Rights, that under no circumstances, can be repealed by invoking any special reserve duty attributed to the appealing, just because he was an Inspector of the Judiciary Police , as it is proffered in the appealed decision.
– The respective content does not offend any of the fundamental rights of the Applicants (AA), being it in the reserve of their private life, within the scope and for the effects of articles 80 and 81 of the Civil Code, since it was actually the applicants that voluntarily limited/repealed that right by participating in multiple interviews and interventions in the media.
– Also , with regards to their good name and image, that the applicants by having disseminated the case in the public sphere giving it worldwide notoriety and, hence , opening all doors to all opinions, including those that are contrary to theirs.
– Also, regarding any guarantees of benefiting from the penal process , namely to a fair investigation and the right to freedom and safety , in the sense that the content of the aforementioned book, documentary and interview describe the facts constant in the investigation.
– Such facts, should be noted, were made available to the general public by the General Prosecuting Office (Procuradoria Geral da República) , that determined the creation of a digital copy of the inquiry process , with the exception of elements subject to total secrecy , and its delivery by requirement , to several people, namely journalists , which occurred.
– Having the contents of the aforementioned digital copy been disseminated, namely via the internet and known, commented and discussed publicly and universally.
– Therefore, there is no duty of reserve that can be imposed to the defendant (R) about facts that were disseminated and made public, namely of all the inquiry process.
– Being that duty of reserve nonexistent, the freedom of expression of the defendant (R) is dominant (greater) in comparison with the invoked rights of the appealed, as the verdict agreed up to the point of inserting that unusual duty of reserve.
– The actions of the defendant (R) are therefore not illicit within the scope and for the effects of article 483 of the civil code, deeming it not possible that he is sentenced to pay any damages and that he should be totally acquitted from the request formulated by the applicants (AA).
– Nor can he be prohibited of publishing, selling or disseminating the aforementioned book and DVD.
– It is also stressed that within the scope of the same norm , adding to the unlawfulness –that is not observed- that it would also be a requirement the proof of cause effect between the behaviour of the defendant (R) and the damages, worthy of mention, suffered by the applicants (AA) , which is totally dismissed if we pay attention to the replies given to article 11 and 16 of the instruction basis as well as to the respective motivation.
– Also noting that the statements constant in those articles present themselves more as conclusions rather than facts to bring to an instruction basis.
– Those conclusions, that are in no way based in any factuality, neither constant of this same basis nor in the points addressed in the articulated of the applicants (AA) .
– In case, however absurd, these are considered as such (damages of alleged facts, worthy of protection and in no circumstance caused by the book and DVD) the constant in articles 13 and 15 of the instruction basis –nothing else as classed as damages was proved - let it be said that the same are not true.
– In order to assess that falsity , and since the now appellant considers that such facts are not confirmed ,the re-appreciation of the recorded evidence will suffice, i.e. the statement of the witness Michael Wright , the statement of the witness Alan Robert Pike and the statement of the witness Angus Keith McBride.
– Such statements give evidence that, even before the publication of the respective book and documentary , identical theories and thesis to the defendant (r) circulated publicly, namely in the internet, and with the absolute knowledge of the applicants (AA) .
– Therefore, being truthful the feelings given as proved in the factual points discussed herein , being these of rage, despair, anguish , malaise or worry, namely what the children may come to think, the truth is that the reasons for the such feelings already existed before any intervention of the defendant (r) now appealing.
– The same can be stated to the insomnia and lack of appetite invoked.
– The court should note that all the witnesses are close to the AA, (family member, phycologist and lawyer) and that in their statements they clearly tried to minimise the theories predating the book and the documentary and, at the same time, naturally tried to give special emphasis to the impact of the book and DVD on the general wellbeing (mood)of the AA.
– This is especially so in relation to the witness Michael Terence Wright, who was in charge of assisting the Applicants (AA) in the dissemination of campaigns and monitoring/surveillance of some sites as well as of information present on the internet, after the disappearance of the minor Madeleine Beth McCann.
– This witness , during the process of summary and critical analysis of the main witness statements , was discredited (and correctly ) by the court since he brought hand written notes with him to court , where one can read, in an almost perfect chronological order , the topics for the replies to the questions that were put to him in the final audience.
– On the contrary, this witness’ declarations against the defendant (r) now appealing, must be specially considered by the court ,when the witness, quite displeased, accepts, that prior to the book and the documentary ,the theories adverse to the McCann’s were already in circulation.
– This without prejudice to the facts that one can state that it is not comprehensible why these facts , here contested , were not decided as not proved in the appealed verdict, when , as may be observed, in the motivation relative to question to article 13 of the instruction phase explicitly concluded that : “Art. 13 – The reply to the constant facts in articles 12 and 13 cannot ignore the assertion ( that one considers elementary based in common experience rules) , that more than any theory or opinion about the causes of the disappearance of Madeleine Beth McCann, it is the fact of her disappearance that dominates in negative terms , the emotional and psychological wellbeing of the applicants ( AA), her parents. That negative emotional state pre-dates the book, the documentary and the interview constant in the declarative action and should not be confused with the specific psychological consequences of those concrete events”.
– Hence, deciding in that way, the appealed verdict incurred in a flagrant unconstitutionality by substantive violation of the comprehended in article 37 of the CRP (Constitution of the Portuguese Republic) and in article 10 of the European Convention of Human Rights, frontally opposing the dominant jurisprudence of the European Court for Human Rights regarding this issue.
– The requisites for the referred convictions are not fulfilled , neither regarding the existence and materialisation of any rights of the appealed nor regarding their serious harm or / threat of harm which, even if these existed – and they do not exist- would never dominate the right to freedom of speech and the right to an opinion of the Appealing.
– Moreover, the appealed decision violates article 483 of the Civil Code, since that no damages resulted to the appealed (AA) from the actions of the Appealing.
– In this scope, the appealed verdict should be revoked , deeming the declarative action completely unfounded as not proved and with the consequent acquittal of the defendant (R) with regards to all the procedures issued against him, recognising his constitutional right to an opinion and his freedom of expression.
RR Guerra e Paz, Editores, SA, e Valentim de Carvalho, SA
– We live in a democratic and rule of law State, set on the principles of pluralism of expression which consecrates the freedom of thought and its free expression , where, moreover, we should all contribute to enrich culture by the publication of books and documentaries.
– The fame and notoriety the applicants achieved in Portugal and worldwide is undeniable. The applicants can’t allow media interviews , including in the intimacy of their home, when these are favourable to them and then prohibit the publication of books and even comments , about public facts when allegedly these can be unfavourable to them.
– Therefore, the scope of the private life of the applicants, because of their notoriety or by their own choice, must be considered reduced, namely within the scope of No. 2 article 80 of the CC.
– The current files are composed of two autonomous actions: A declarative action of condemnation against the defendant (R) Gonçalo Amaral requesting, namely the payment to the applicants of compensation in the amount of €1.200.000; and an annexed action , based on the same facts and groundings , the applicants (AA) required the several defendants (RR) were convicted in the conducts referred to in points I to VII of the verdict.
– The appealed verdict considers as relevant to analyse if the book written by the co-defendant (co-R), the documentary and the interview are illicit /anti juridical within the scope of article 484 of the Civil Code , if there were damages, what is the amount of the their compensation and if the submitted requests in the annexed action are adequate to the removal of the illicit effects committed.
– The appealing consider that they are not obliged to assure the defence of the co defendant (co-R) Gonçalo Amaral , however the manner in which the verdict is built obliges them to do so .
– The author of the book “Maddie, the Truth of the Lie” , the co-defendant (co-R) Gonçalo Amaral was an investigator in the case of the disappearance of Madeleine McCann , having been the target of repeated personal and professional attacks by the applicants (AA) in the national and international media.
– Hence the book must also be analysed as the legitimate exercise of the co-defendant (co-R) Gonçalo Amaral of the right to defend his honour and good name that had been offended by the appealed.
– Point 43 of proved facts , of the appealed verdict, mentions the statement made by the appealing VCF:” The mystery persists, the former inspector believes that one day the truth will be known. For now we only know that on the 3rd of May 2007, Madeleine McCann disappeared in Praia da Luz. She was 3 years of age and she was a happy child”.
– The appealed verdict analysis the duty of reserve than an investigator is obliged to, but these only exist for those still in service, which is not the case of the co-defendant (co-R) Gonçalo Amaral.
– Without prejudice, the breach of the duty of reserve is not eligible to offend the good name and reputation of the appealed, since the judicial value that it protects is the administration of justice.
– The appealed verdict laid down that in the referred conflict of rights resolution , the illegality of the co-defendant Gonçalo Amaral’s conduct is revealed, within the scope of article 484 of the civil code, which does not merit accordance.
– Within the scope of article 334 of the Civil Code, the exercise of a right is only illegitimate if the right holder manifestly exceeds the limits of good faith, which was not the case.
– The conflict of rights must be decided in accordance with the principles contemplated in article 335 of the civil code and it is not possible, through its resolution, to assess a conduct as illicit.
– Hereby the illegality of any fact by the co-defendant Gonçalo Amaral, was never effectively known in the issued verdict , which deems it void within the scope of item d), of number 1, article 615 of the CPC (Civil Process Code).
– The same is also verified with the remaining points enumerated in art 483 of the CC, that were not analysed where they concern the co-defendant (co-R) Gonçalo Amaral and even less analysed was the cause effect link between the statements made by the co-defendant Gonçalo Amaral in the book and documentary and the supposed damages suffered by the appealed , even because all these were dispersed in time.
– Here was no ponderation if the alleged incurred damages by the appealed directly and necessarily resulted from the declarations issued by the co-defendant (co-R) Gonçalo Amaral in the book and documentary or rather that they were caused by the facts reported in these, i.e by the disappearance of Madeleine McCann, because they were made arguidos and the object of unfavourable news due to that fact, both nationally and internationally.
– Being these facts public and notorious, they require no allegation or proof, within the scope of article 412, No.1 of the CPC , but even so they were alleged by the appealing.
– In light of the facts deemed not proved under points j) and k) and the amount that courts award to the damage in cases of death, the attribution of compensation in the total required amount by the appealed is unfair, even because of the economic conditions of the applicants and the defendants.
– The several requests issued by appealed in the annexed action are only mentioned in section IV of the verdict.
– The current files /process regard the book “Maddie, A Verdade da Mentira”, by the author co-defendant Gonçalo Amaral and edited by this publisher –points 16 to 22 of the proved facts-which publishing contract was agreed between the appealing GeP on the 10/3/2008 and the work published on the 24/7 of that same year.
– The appealing VCF celebrated and agreement with the co-defendant Gonçalo Amaral, designated “ Option of rights – Deal Memo” on the 07/03/2008, with view to the audio-visual adaptation of a book about the investigation of the disappearance of (MBM) in Praia da Luz – point 35 of proved facts of the appealed verdict . The deal materialised on the dates and conditions of the constant in points 36 to 38 of the proved facts.
– Within the scope of article 5, no. 1 of the CPC, it is the parties that are to allege the essential facts that form the cause of the requesting, but the judge is not subject to the parties allegations, as to the questioning, interpretation and application of the norms of law, as stipulated by article no. 3.
– The initial petition that originated the current action, where it regards to the appealing does not contain facts that fulfil the requisites the principles enumerated in no. 2 of article 70 of the CC.
– Such legal instrument conveys that the threatened or offended person may require the adequate measures to the circumstances of the case, with an aim to avoid the concretization of the threat or to minimise the effects of the offence already committed.
– The aforementioned book was published by other publishers in several countries –point 28 of the proved facts.
– A Portuguese and an English version of the aforementioned book circulate on the internet without the permission of the appealing, in proved facts.
– On the other hand, the Portimão Public Prosecutor, determined a creation of a digital copy of the enquiry process, delivered it via formal request, having the files been disseminated via the internet –points 65 and 66 of proved facts.
– “The facts relative to the criminal investigation into the disappearance of Madeleine McCann that the defendant (R ) Gonçalo Amaral refers in his book, in his interview to correio da Manhã and in the documentary are, in their majority, facts that occurred and were documented in that investigation (articles 27 and 28 of the instruction base)”- art. 80 of the proved facts.
– Even with the issued prohibitions and being the appealing unable to prevent it , the book in English and Portuguese versions and the documentary are illicitly and against the will of the detainers of the respective copyright of publishing and transmission, circulate on the internet , the criminal investigation files opened after the disappearance of Madeleine McCann are also available.
– It was considered as not proved that the appealed are totally destroyed , in a morally, socially, sentimentally and family, well beyond the pain that the absence of their daughter causes them -point j) of not proved facts in the appealed verdict.
– Finally , for the application of the petitioned measures, the appealed verdict considered that the 3 defendants (RR) constituted themselves as vehicles of the illicit committed by defendant Gonçalo Amaral , by this being passive subjects of the measures that under no. 2, art 70 of the CC should be ordered , referring that it is important to analyse each of the petitioned measures in details and to verify on a case base basis if these are legal, adequate and proportional to the concrete case and who are the intended receivers of the same .
– What is certain is that the appealed verdict did not analyse them , nor did it validate them, de facto or by point of law as required by article 158 of the CPC, which deems the verdict with nullity within the scope of al b), no. 1 of article 615 of the CPC.
– And in this manner, without any grounds , it was determined that the prohibition of sale and the order for the removal of the books for delivery to the applicants (AA), consecrate the attributes invoked and should be directed to the defendant Gonçalo amaral and the appealing GeP.
– The prohibition of the execution of new editions of the book or DVD, as well as the transfer of publishing rights and author rights is adequate, it should be directed against the defendant (R ) Gonçalo Amaral and the appealing .
– In the concrete case , after the injunction that determined part of the measures then granted , it had already been decided that : “The Injunction ordering the apprehension of the book must not be granted, the book has as its main motivation the defence of the personal honour of the police inspector in charge of the investigation of a certain crime, in which he convey his interpretation of the indicia gathered in that investigation and made public by the competent authorities , being that the petitioners voluntarily limited their right to intimacy by profusely disseminating the respective case via the media” – AC TRL, 14/10/2010, in dgsi.pt
– In light of these facts declared as proved in points 30 and 63, the measures issued are inadequate and do not minimise the effects of the alleged offence.
– The setting of the compulsory pecuniary sanction in the amount of €50.000 has also not been grounded and it is excessive and disproportional.
– The verdict suffers from nullity within the scope of als b) and d) of no. 1 of article 615 of the CPC , and should be revoked , acquitting the appealing of the measures ordered , with all the legal consequences.
– And, because the issued decision violated, namely articles 37, 38 and 42 of the CRP, 5, 158 and 615 of the CPC, 334and 335 of the CC and 19 of the Declaration of human Rights .
In counter-allegations, the appealed have pronounced themselves in favour of the confirmation of the trialled case.
Gathered the legal, requirement to decide.
2. The following factual matter was considered as proved in first Instance (court)
1. The applicants KM and GM are married to each other
2.The applicant Madeleine Beth McCann was born on the 12.05.2003 and is the daughter of the applicants Kate and Gerry McCann
3.The applicant Sean McCann was born on the 01.02.2005 and is the son of the applicants Kate and Gerry McCann
4. The Applicant Amelie MCCann was born on the 01.02.2005 and is the daughter of the applicants Kate and Gerry McCann
5. The Applicant Madeleine Beth McCann has been missing since the 3rd of May of 2007, and the criminal investigation n. 201/07.0GALGSwas open by the General Prosecution of the Republic for the Portimão District.
6. The British Police Dogs “Eddies” and “Keela” detected human blood and cadaverine in the apartment 5A, Ocean Club
7. The British Police Dogs “Eddies” and “Keela” detected human blood and cadaverine in a vehicle rented by the Applicants after the disappearance of MBM.
8. The Applicants Kate and Gerry McCann were constituted arguidos in the scope of the police investigation
9. Pages 2587-2602 of the criminal investigation, 19.07.2007, chief Inspector Tavares de Almeida wrote a report in which the following section can be transcribed :
“From everything that was gathered, the facts point in the direction that the death of Madeleine McCann occurred, on the night of May 3rd of 2007, inside the apartment 5A, of the Ocean Club resort, occupied by the couple McCann and by their three children;” (...)
“From everything that was exposed from the AUTOS, we conclude that:
A) The minor Madeleine McCann died in the apartment 5A of the Ocean Club resort, on the night of May 3rd of 2007;
B) It was performed a simulation of kidnapping;
C) In order to avoid the death [alarm] of the minor before 22H00, it was created a situation of the children's surveillance by the McCann while the children slept;
D) Kate McCann and Gerald McCann are involved in the occultation of the cadaver of their child Madeleine McCann;
E) At this moment, there seems that there aren't strong indicia that the death of the minor didn't happen due to a tragic accident;
F) From what was obtained until now, everything points out that the McCann, as self-defence, didn't want to deliver immediately and voluntarily the cadaver, existing a strong possibility that the same was transported from the initial place of deposition. This situation is susceptible to raise questions about the circumstances under which the death of the minor occurred.
So we suggest that the 'Autos' be sent to the EX.mo Sr. Procurador Geral da República [General Attorney], in order to:
G) New interrogation of the Arguidos Kate and Gerry McCann;
H) Evaluation of the measure of restraint to be applied in this case;” Pages 2601 of criminal Investigation
10. Page 2680 of the criminal investigation, 10 September 2007, public prosecutor in charge of the case:
“In the course of the investigation, where one continues to investigate the disappearance of Madeleine McCann , being the investigation open whether to confirm or infirm its occurrence, in relation to the crimes of abduction, homicide, abandonment and concealment of body and as per our drafted plan, it is necessary to document the real time of said disappearance, find out the precise location of each of the intervenients at the time of the events and also in the time after the events –the McCann couple and their group of friends that were on holiday with them in the tourist apartments Ocean Club in Praia da Luz: Jane Michelle Tanner, Russel James O’Brien, Matthew David Oldfield, Rachael Marianna Jean Manpilly, David Anthony Payne, Fiona Elaine Payne and Diana Webster . There is also a need to determine the movements of the arguidos Kate and Gerry McCann for the time of their stay in Portugal while establishing all the connections between all the intervenients and third parties. In this sense, and because the diligences that will be pointed here are essential to finding the truth, namely to analyse the telephone activity of the McCann couple and their friends, as well as other telephone numbers, that has been established was related to the facts occurred on the night of the 3rd of May 2007, remit the official file to the Mmo. JIC”
11. Page 3170 of the criminal investigation, 03.12.2007 by the Criminal Instruction Judge of Portimão
“ Since in the current criminal investigation files the crimes of abduction, homicide, abandonment and concealment of a body are being investigated being the first 3 crimes punishable with sentencing superior to 3 years and because it necessary to identify the suspicious behaviour observed in th surroundings of the place where the child disappeared from and mentioned in pages 3150 and 3154 and following of the case files , having so a high importance to the discovery of the truth , the data requested by the Public Ministry I order that (...) is requested from operator Portugal Telecom (...)” Point AV of the proved facts.
12. The Defendant Gonçalo Amaral was the Inspector of the Judiciary Police in charge of the coordination of the investigation into the disappearance of the applicant MBM. Amaral
13. The defendant Gonçalo Amaral retired from the police force on the 1st July 2008 (art 19 Base Instrutória)
14. on the 21st July 2008 the General Prosecution of the Republic divulged a note to the media announcing the archiving of the criminal investigation and that the same could be reopen by the initiative of the Public Ministry or any interested parties if new elements of evidence that would lead to pertinent diligences (article 20 of Base Instrutória) .
15. In the archiving report, 21.07.08:
“ Taking into account that there were certain points in the arguidos' and witnesses' statements that revealed, apparently at least, contradiction or that lacked physical confirmation, it was decided to carry out the "reconstruction of the fact", a diligence that is consecrated in article 150 of the Penal Process Code in the sense of duly clarifying, on the very location of the facts, the following very important details, among others:
1 – The physical, real and effective proximity between Jane Tanner, Gerald McCann and Jeremy Wilkins, at the moment when the first person walked by them, and which coincided with the sighting of the supposed suspect, carrying a child. It results, in our perspective, strange that neither Gerald McCann nor Jeremy Wilkins saw her, or the alleged abductor, despite the exiguity of the space and the peacefulness 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 seemed then 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 arguidos 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 the child, namely through a window with scarce space. 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 her 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 obvious and well-known advantages of immediate appreciation of evidence, or in other words, the fulfilment of the principle of contiguity of evidence in order 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.
In this sense, the legal procedures were followed, according to the norms and conventions that are in force, and the appearance of the witnesses was requested, inviting them to be present inclusively 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 motives, after the many doubts that they raised about the necessity and opportunity of their trip were clarified several times, they chose not to attend, which rendered the diligence inviable.
We believe that the main damage was caused to the McCann arguidos, who lost the possibility to prove what they have protested since they were constituted arguidos: their innocence towards the fateful event; the investigation was also disturbed, because said facts remain unclarified.”(...)
“This 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 guard those same children, although not in a temerarious, or gross, manner” (...)
“While it is an unavoidable fact that Madeleine disappeared from Apartment 5A of the 'Ocean Club', the manner and circumstances under which this happened are not – despite the numerous diligences made in that sense -, therefore, the range of crimes that were indicated and referred to during the inquiry remains untouched.” (...)
“Concerning the other indicated crimes, they are no more than that and despite 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 sustaining elements in the files.
The non involvement of the arguidos parents of Madeleine in any penally relevant action seems to result from the objective circumstances of them not being inside the apartment when she disappeared, from the normal behaviour that they adopted until said disappearance and afterwards, as can be amply concluded from the witness statements, from the telephone communications analysis and also from the forensics' conclusions, namely the Reports from the FSS and from the National Institute for Legal Medicine.
To this can be added that, in reality, none of the indications that led to their constitution as arguidos was later confirmed or consolidated. If not, let us see: the information concerning a previous alert of the media - before the police - was not confirmed, the traces that were marked by the dogs were not ratified in laboratory, and the initial indications from the above transcribed email, better clarified at a later date, ended up being revealed as innocuous.
Even if, hypothetically, one could admit that Gerald and Kate McCann might be responsible over the child's death, it would still have to be explained how, where through, when, with what means, with the help of whom and where to they freed themselves of her body within the restricted time frame that would have been available to 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 that lies next to it, unknowing the surrounding terrain and, apart from the English friends that were with them on holiday there, they had no known friends or contacts in Portugal.” (...)
“- Tests and analyses were performed in two of the most prestigious and credentialed institutions for this effect – the National Institute for Legal Medicine and the British lab Forensic Science Service -, whose final results did not positively value the collected residues, or corroborated the canine markings;”(...)
“- Despite all of this, it was not possible to obtain any piece of evidence that would allow for a medium 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 all seen, analysed and duly pondered, with all that is left exposed, it is determined:
b) The archiving of the Process concerning arguidos Gerald Patrick McCann and Kate Marie Healy, because there are no indications of the practise of any crime under the dispositions of article 277 number 1 of the Penal Process Code.” (...)
16. The defendant Guerra e Paz , Publishers is a commercial society and its activity consists of editing, publishing, trading, including import and export of books.
17. On the 10th March 2008 the defendant, Guerra e Paz Editores, SA and the defendant Gonçalo Amaral signed a written agreement, add pages 277-281, designated contract for transfer of author rights through which the defendant Gonçalo Amaral gave the exclusive right to publish the text “Madeleine, the Truth of the Lie “ exclusively for ten years, in the form of a book, printed or electronic, in any language and in the whole world.
18. Clause 4, n1 of this agreement states the following: “ The retribution to be paid by the 1st party to the 2nd party for author rights relative to the editions of the work to be commercialised in Portugal will be of:
a) 12% of the cover price of each copy sold, net of VAT, up to 30.001 copies. B) 14% of the cover price of each copy sold, net of VAT, from 30.001 to 50.000 copies. C) 16% of the cover price of each copy sold, net of VAT from 50.001 copies sold.
19. Clause 5, n2 of this agreement states the following: “If the first party sells the copyright to other languages, in any country in the world and after deducting the costs inherent to that sale, the net income from that sale will be divided in equal parts between the 1st and 2nd parties, ie 50% each.
20. The defendant Gonçalo Amaral is the author of the book “Maddie , the Truth of the Lie”, published by Guerra e Paz , Editores SA.
21. The cover of the book has the word “confidential” written in red and in the inside cover “Reserved Reading” and “contains unique revelations” .
22. The technical summary of the book, page 4, has the following data: Revision :Fernanda Abreu. Cover and Pagination: Ilidio J.B. Vasco. Photograph of the author: Sandra Sousa Santos. C Guerra e Paz Editors , SA, 2008, All rights Reserved. Cofina media for photographs by Nuno Costa.
23. From the book “Truth of the Lie” (Intro to the Book pgs 11-12, pages 16, pages 19-20, pages 21, page 22-24, page 193pages 220-221) all quoted. –
(Translator: I won’t transcribe them here since it is a long text and one can consult the book to read relevant passages)
24. Conclusion of GA’s Book (pages 220-221)
25. The book “Maddie , the Truth of the Lie” was launched on the 24th July 2008, in El Corte Inglès, in Lisbon.
26. On the day of its launch, 24.07.08, the book was also sold with the newspaper Correio d Manhã.
27.The book “Maddie , the Truth of the Lie” had the following editions in Portugal:1st edition in July 2008, 30.000 copies printed 2nd; July 2008, 10.000 copies printed; 3rd July 2008, 10.000 copies printed; 4rth July 2008, 30.000 copies; 5th August 2008, 25.000 copies; 6th August 2008, 10.000 copies; 7th, August 2008, With 15.000copies printed; 8th, August 2008, 10.000 copies; 9th August 2008, 10.000 copies; 10th, August 08, 10.000 copies;11th August 08, 10.000 copies; 12th, 2008 10.000 copies printed.
28. The book was published through other editors in the following countries: Spain, September 2008, with the possible trading in Spanish in South American Spanish speaking countries; Denmark, November 2008, with possible commercialisation in other Nordic countries; Italy , December 2008, with the commercialisation in Italian for all the world; Holland, April 2009, with commercialisation in Dutch for all the world; Germany, June 2009 with commercialisation in Austria and Switzerland.
29. Within the scope of the injunction attached there were only around 7.000 copies of the book delivered to the applicants legal representative.
30. Copies of an English and Portuguese version circulate in the internet without the authorization of Guerra e Paz, Editores SA.
31. The cover price of the book “Maddie the Truth of the Lie” in Portugal was determined by the defendant Guerra e Paz on the amount of 13.33 euros (thirteen Euros and thirty three cents) , Inclusive of VAT.
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.
33. The defendant Gonçalo Amaral, received the following amounts from teh sale of the book: 2008 and 2009, teh amount of 342,111.86 .
34. The defendant, VC Valentim de Carvalho is a commercial society that creates, develops, produces and promotes the exhibition and broadcast of cinematographic and audiovisual works.
35. On the 7th March 2008, teh defendant Gonçalo Amaral and the defendant Valentim de Carvalho signed a written agreement (add pages 282-283) designated concession of rights - Option of Rights – deal demo” through which the defendant GA gave 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 Valentin de Carvalho signed a written agreement (284-288) , designated “passing of Rights - Option contract” through which the defendant GA gave the defendant VC the right to adapt the book to documentary and/or fiction that may have the format of a film for cinema or a TV movie
37. Clause 2 of this agreement has states the following: By the transfer of these exclusive right of option, VC Films compromises to pay the author the gross sum of 25.000, subject to legal fees and added VAT.
38. Clause 4, the author is obliged to participate as a narrator, transferring all image and sound rights. 2 For that participation and transfer patrimonial content of author rights connected to VC films the author will receive the gross sum of 15.000 euros, subject to legal fees. 3. For the transfer of rights named in 2 the author will receive 10% of all receipts national or international of the trading of the documentary (in all platforms and supports invented or yet to be invented) after deduction of production costs.
39. The defendant V.C- Filmes , Audiovisuais, SA agreed with VC Multimedia SA, on the 6th June 2008, to transfer to the latest all trading, distribution and exhibition and broadcast of cinematographic and audiovisual works (film, miniseries, documentaries) that they intended to produce within 5 years.
40. The defendant VC produced the documentary “Maddie , The Truth of the lie” , produced by Carlos Coelho Silva , which is an adaptation of the book written by the defendant GA. I have attached such documentary to the files.
41. At the beginning of the documentary, the defendant Gonçalo Amaral states the following: -“ My name is Gonçalo Amaral and I was a police investigator for the Judiciary Police for 27 years. I co-ordinated the investigation of 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”
42. At the end of the documentary, the defendant Gonçalo Amaral states the following: -“ What I know tells me that Madeleine McCann died in apartment 5A on teh 3rd of May 2007. I am certain that this truth will one day be verified. The investigation was brutally interrupted and there was a hasty political archival .There is some who hide the truth but, sooner or later, the varnish will crack and the revelations will surface. Only then will there be justice for Madeleine MCCann.”
43. The defendant, Valentin de Carvalho –filmes Audiovisuais, SA concludes the documentary with this statement: -“The mystery goes son, the former Inspector believes that one day the truth will be known. For now, we only know 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”
44. In the sequence of deliberations on the 27th October 2008, an increase was registered in the share capital of the defendant Valentim de CArvalho - Filmes Audiovisuais SA , which was registered on the 28th September 2009, where by the capital of the company was held in teh proportion of 60% by Estudios Valentim de Carvalho- Gravações e Audiovisuais , SA and 40% by Fundo de Investimento para o Cinema e Audiovisual.
45. On the 13th April 2009 and on the 12th May 2009 the documentary was broadcast by the defendant TVI-Televisão Independente SA.
46. Before the documentary’s broadcast, the defendant, TVI-Televisão Independente SA issued the following statement: “The following programme is a documentary based on the book by Gonçalo Amaral, former PJ Inspector that investigated the disappearance of Madeleine McCann in the Algarve. His version of events is denied by Maddie’s parents that continue to insist this was abduction. The criminal investigation carried out by the Portuguese Authorities ended with the investigation archival, a decision contested by Gonçalo Amaral. More than to find those responsible, a task for the justice system, the broadcast of this documentary aims at shedding some light and provide facts that may contribute to understand a case that remains a mystery for almost two years.
47. At least two million and two hundred thousand people watched the programme broadcast on teh 13.04.2009.
48. The defendant Gonçalo Amaral gave an interview to the newspaper “Correio da Manhã” , conducted by the journalists Eduardo Dâmaso and Henrique Machado, published on the 24th July 2008. Its contents totally reproduced and placed on the front page that contain the following statements attributed to GA: (Link to interview in English attached, since the same is transcribed fully) http://www.mccannfiles.com/id129.html ( look for CM inteview translated by Joana Morais, 24th July 2008)
49. The defendant Gonçalo Amaral issued the above mentioned affirmations.
50. The defendant Gonçalo Amaral gave interviews to the defendant TVI-Televisão Independente SA on the 16.05.2009 and on the 27.05.2009.
51. By the end of April 2009, the documentary went on sale in DVD witht he title “Madeleine the Truth of The Lie” - A Powerful Documentary based on teh best seller “ The Truth of the Lie” by Gonçalo Amaral.
52. The above mentioned DVD was edited and the edited copies were traded by Valentim de Carvalho Multimédia SA through agreement with Presselivre, Imprensa Livre SA
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.
55. In the video cover the Word “confidential” is written in red.
56. The DVD was sold by Sociedade Presselivre, Imprensa Livre SA as an insert with he newspaper owned by the same company Correio da Manhã at the price of 6,95Euros (six euros and ninety five cents, inclusive of VAT.
57. To this current date, the documentary was reproduced only once to be edited, published and traded in Portugal in its video format.
58. The reproduction and editing of the documentary in video format were authorised by “Valentim de Carvalho Multimédia SA to the company Presslivre-Imprensa Livre SA, proprietor of the newspaper Correio da Manhã, as per the contract celebrated between the two.
59. In the terms of the contract, the DVD’s covers and packaging would be produced by the company presslivre-imprensa livre SA, to be distributed with the newspaper Correio da Manhã.
60. All registration and edition classification with IGAC would be carried out, as it was, by Valentim de Carvalho Multimédia and the costs to be supported, as they were, by Presselivre.
61. The documentary DVD was distributed for sale with the printed copy of the newspaper Correio da Manhã.
62. The defendant Gonçalo Amaral received 40.000 euros (forty thousand Euros =for the sale of the DVD in 2008.
63. The documentary was reproduced and inclusively subtitled in English by third parties that divulged it on the internet without the permission and against the will of the defendant VC-Valentim de Carvalho –Filmes, audiovisuais SA .
64. The illicit reproduction is prejudicial to the copyrights of the defendant VC- Valentim de Carvalho –Filmes, audiovisuais SA held on the documentary and also for the trading of the DVD since any citizen can access the DVD at the distance of a click.
65. The General Prosecution of The Republic in Portimão determined a digital copy of the criminal investigation , with the exception of files protected by absolute secrecy, and its delivery via a request to people, namely including journalists.
66. The contents of that digital copy was divulged, namely on the internet, having been known, commented and discussed publically and universally.
67. The applicants Kate McCann and Gerald McCann alerted the press to the disappearance of their daughter.
68. The applicants Kate McCann and Gerry McCann gave an interview to the Nroth American TV programme “Oprah” , presented by Oprah Winfrey and revealing the existence of new witnesses , reconstructions and E-Fits.
69. The Oprah Winfrey interview was broadcast to the whole world via satellite and cable TV.
70. This interview in the progamme Oprah was broadcast in Portugal by SIC on the 09.05*2009 and on the 12.05.2009.
71. The applicants Kate McCann and Gerald McCann , in co-operation with the British TV Channel “Channel 4” , produced a 60 minutes documentary about their daughter’s disappearance, called “Still Missing Madeleine”
72. On the 15/04/2009 , the defendant TVI – Televisão Independente SA, signed a pre agreement aiming at the licencing of the broadcast of the documentary “Still Missing Madeleine” for 35.000 Euros.
73. The applicants Kate McCann and Gerald McCann ordered that the documentary “Still Missing Madeleine” was not given to TVI-Televisão Independente SA.
74. The documentary “ Still Missing Madeleine” translated in Portuguese to “Madeleine, dois Anos de Angústia” , was broadcast by SIC on the 12.05.2009
75. On the 17.10.2007 , Clarence Mitchell , spokesman for the applicants Kate McCann and Gerald McCann , stated that the applicants were sufficiently realistic to admit that their daughter was likely dead.
76. The events surrounding the disappearance of Madeleine McCann and the investigation into her disappearance generated extraordinary public interest. As did the diligences carried out to try and establish what took place , the evolution and vicissitudes , including the constitution of Kate McCann and Gerald McCann as arguidos in the criminal instruction process and the removal of the defendant Gonçalo Amaral from the investigation that had been carried out under his coordination.
78. The so called “Maddie Case” has been extensively scrutinised in the Portuguese and international societies being it in the press or in books , such as the books by Paulo Pereira Cristóvão, Manuel Catarino and Hernâni Carvalho.
79. The so called “Maddie Case” was commented by Dr Francisco de Moita Flores , former Inspector, criminologist and commentator in several media. FMF made such statements as per his professional qualifications.
80. The facts of the criminal investigation that the defendant Gonçalo Amaral refers in his book, interview to the newspaper “Correio da Manhã” and in the documentary are, in its majority , facts that occurred and are documented in the said investigation.
81. As a consequence of the defendant Gonçalo Amaral’s statements in the book, documentary and interview to Correio da Manhã the applicants Kate McCann and Gerald McCann felt anger , despair , anguish ,worry and also insomnia as well as lack of apetite .
82. The same applicants feel unease , because the people who believe the defendant’s theory about the disappearance think they are responsible for the concealment of their daughter’s body and simulating her abduction.
83. The applicants Kate McCann and Gerald McCann feel the need , with extreme worry, to keep their younger children from knowing the theory referred in the number above.
84. Sean and Amelie McCann went to school in August 2010 but have not yet have any knowledge of the defendant Gonçalo Amaral’s theory, also referred in the same number .
3. Under articles 635, number 4, and 639, number 1, of the Civil Process Code, the matter of the appeal is delimited by the appellant’s conclusions.
The matter subject to decision is thus essentially centred on the evaluation of the alleged wrongfulness and the responsibility that derives from it, imputed to the 1st defendant [Gonçalo Amaral], now the appellant, of the publication, by the 2nd and the 3rd defendants, equally appellants, of the works at stake.
As far as personality rights are concerned, article 26, number 1, of the Constitution states that everyone has a right to a good name and reputation and to the protection of the intimacy of private and family life.
The same fundamental law protects, with equal dignity, freedom of expression, by stating under number 1 of article 37 that everyone has a right to express and to publicise their thoughts in words, image or by any other means, as well as the right to inform, to inform oneself and to be informed, without impediment or discrimination.
And also, under number 2 of article 38, freedom of press, by consecrating freedom of expression and of creation by journalists and their collaborators.
Number 2 of article 18 establishes, in the case of conflict between fundamental rights, that any legal restrictions to those rights must be limited to whatever is necessary in order to safeguard other rights or interests that are constitutionally protected.
On the other hand, in ordinary law, article 70 of the Civil Code consecrates, as a principle, that the law protects individuals against any illicit offence or threat to offend their physical or moral integrity, while article 80 of the same diploma states that everyone must respect someone else’s intimacy of private life.
Whenever there is a collision of rights that are equal or of the same kind, the holders must, under number 1 of article 335, cede as necessary in order for all of them to produce their effect equally, without greater damage for any one of them – while (under number 2 of the same article), if the rights are not equal or are of different species, the one that is considered superior must prevail.
Therefore, and as the dominant jurisprudence understands the matter:
“One of the limits to the freedom of information, which therefore is not an absolute right, is the safeguard of the right to a good name. Journalists, the media, are bound by ethical and deontological duties, and duties of rigour and objectivity.
- The media have the right, the social function, of spreading news and giving critical or non-critical opinions, and it is important that they do so with respect for the truth and for someone else’s intangible rights, as are personality rights.
- The right to honour, in a broader sense, and the right to freedom of press and of opinion are traditional areas of conflict.
- Criticism has a boundary in the rights of its targets, but it remains legitimate if it is sharp, steely, as long as it is not injurious, because so often therein lies the style of the author.
- To criticise implies to reproach, fault-finding that is aired in the media only stops being legitimate as a manifestation of individual freedom when it expresses objective antijuricity, violating rights that are extremely personal and which effect, in a more or less lasting manner according to men’s memory, assets that need to be preserved as are the rights here at stake, to honour, to a good name and to a social standing” (decision by the Superior Court, dated 20/1/2010, www.dgsi.pt)
In the case at hand, apart from the reporting of the facts that are part of the inquiry into the disappearance of Madeleine McCann, an analysis of the book and of the rest of the published material finds that the now 1st appellant [Gonçalo Amaral] therein sustains the thesis that an abduction did not take place, but rather the accidental death of the child, followed by a cover-up – through the concealment of her cadaver and the simulation of that crime – by plaintiffs Gerald and Kate McCann, now the subjects of the appeal.
It results from the aforementioned publication that the means of evidence and the indicia that it reports to are, essentially, those referred to and documented in the respective criminal enquiry.
Nevertheless, the exposed thesis, that the child died accidentally and that fact was concealed by the parents, who have broadcast, in order to deceive, the hypothesis of an abduction, is not new – the same is equally contained in the report which is mentioned under number 9 of the proven facts, determining the arguido constitution of said subjects of appeal [Kate and Gerry McCann], and was, after a copy of the inquiry was made public, published in the media (numbers 65 and 66 of proven facts).
As was stated in the decision, from this Section, concerning the appended injunction, the 1st appellant [Gonçalo Amaral], wanted, through this book – because the institution to which he was bound did not allow him to reply to attacks against his pride and honour, as a professional of the criminal investigation police – to expose his vision of the facts, and therefore the publication of said book has to be considered a legitimate exercise of the right to an opinion.
And because from the proved matter results that – apart from it being about facts that have been profusely published in the inquiry and even publicised through an initiative of the Republic’s Prosecutor General’s Office – it was the subjects of the appeal themselves [Kate and Gerry McCann] who, benefiting from an easy access, multiplied themselves in interviews and interventions in national and international media, one must conclude that it was them who, voluntarily, limited their rights to reservation and to the intimacy of private life.
By proceeding in this manner, they opened the way for anyone to equally express an opinion about the case, contradicting their thesis – without losing their right to exercise a legitimate, and constitutionally consecrated, right to an opinion and a freedom of expression of thought.
On the other hand, we cannot see how the right of the subjects of this appeal [Kate and Gerry McCann] to benefit, following their constitution as arguidos, from the guarantees of the penal process – including the right to a fair investigation and the right to freedom and safety – may be offended by the contents of a book which, in its essence, describes and interprets facts that are part of an inquiry whose contents have been published.
Nothing opposes that, although they have not been deemed sufficient to lead to a criminal charge, said facts are subject to diverse appreciation, namely in a work of literary nature.
Therefore, and because it is contained within consecrated rights, namely under numbers 37 and 38 of the Constitution, the publication at stake must be considered lawful.
Nonetheless, it is understood, in the decision under appeal, that because the 1st appellant, Gonçalo Amaral, was, until October 2, 2007, the coordinator of the criminal investigation into the disappearance of Madeleine McCann, he was, after his retirement on the 1st of July, 2008, subject to the duties of secrecy and reserve that are imposed to the employees that serve the Polícia Judiciária.
And, under such terms, although the introductory note in the book invokes personal reasons, in a situation of conflict with the rights to a good name and reputation of the subjects of the appeal, the appellant [Gonçalo Amaral] could not benefit, faced with the results of the investigation, of a broad and full freedom of expression – and thus his conduct would be unlawful, under article 484 of the Civil Code.
From what was above said about this matter, it is clearly understood that such argumentation cannot be sustained.
In effect, and independently of the reasons invoked by the appellant for the publication, it is hardly understandable that an employee, even more a retired one, would have to keep said duties of secrecy and reserve, thus being limited in the exercise of his right to an opinion, concerning the interpretation of facts that were already made public by the judiciary authority, and widely debated (in fact, largely by initiative of the intervenients themselves) in the national and international media.
In the absence of its primordial presupposition it must therefore be concluded against the previous decision, due to the lack of precedence of any of the requests that have been formulated by the current subjects of the appeal [Kate and Gerry McCann] – while the re-appreciation of the matter of fact that had been secondarily requested remains impaired.
4. From the above mentioned, it is agreed, in accordance with both appeals, to revoke the appealed decision and, considering the action against them to be unfounded, to acquit the appealing plaintiffs of the totality of the requests. The costs, in both instances [courts] are to be paid by the appealed subjects [Kate and Gerry McCann].
