McCann V Amaral: Supreme Court verdict 31 Jan 2017

This information belongs to the Ministerio Publico in Portimao, Portugal.
It was released to the public on 4 August 2008 in accordance with Portuguese Law

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Kate, Gerald, Madeleine, Sean and Amelie McCann ― the last three minors represented by the first claimants, their parents ― filed, against Gonçalo Amaral, the publisher Guerra & Paz, Editores SA, the audiovisual production company Valentim de Carvalho-Filmes e Audiovisuais SA and the TV Channel TVI-Televisão Independente, legal actions in the ordinary form, subsequently attached to Lisbon 1st Civil Chamber, demanding the condemnation of the first defendant to pay the claimants the total amount of €1.200.000, plus interest at the legal rate since the summons, as compensation for moral damages arising from the publication by the first defendant, in book and DVD, of his version of the facts related to the disappearance of the minor MMC, third claimant, and the prohibition for sale, publication or disclosure by all defendants, book and DVD in question.
  

All defendants challenged, rejecting the responsibility imputed to them and concluding that the action was inadmissible.
  

The sentence uttered following the judgement held that the action was admissible in part, sentencing the first defendant to pay to each of the first two claimants the amount of €250.000, plus legal interest, and prohibiting the first three defendants to proceed with existing sales and any new editions of the book and DVD  as well as transferring the associated copyrights, absolving the defendants of other queries of the claimants and the fourth defendant of all queries.
  

The first instance's judgement concluded that the book written by Gonçalo Amaral, the adaptation of this book for a documentary and the interview of the same defendant were illicit, according to article 484° of the CC  1 and that were verified the other assumptions legally binding  the compensation foreseen in CC's art. 483°, wherefore the requests expressed in the lawsuit were considered partly proceeding in the terms mentioned above.

 
 
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In order to conclude with the unlawfulness of those behaviours, were considered the respective contents of the book, documentary and interview, and the conflict between freedom of speech and right to good name and reputation of the plaintiffs.

Therefore, in that judgement, was developed the following argumentation that we reproduce partly thereafter because it appears interesting on the point of view of the solution that will be given to the issue exposed in the minutes:

Starting the discussion in a logical and chronological order through book analysis, one immediately establishes that what is at stake is not a text with informative content.

In fact, one doesn't find in the book, reported in a stripped and simple way, the facts of the investigation that intended to clear the circumstances of the disappearance of the minor Madeleine McCann on May 3, 2007. No added value is brought to the partial copy of the investigation that the Attorney General's Office did distribute for Social Communication after the closure of the investigation (n°s 65 and 66 of the proven facts).

The book is the expression of an opinion, including the account of the conclusions that the author draws from the means of obtaining evidence produced in the investigation in order to formulate a thesis, an hypothesis of ascertainment of the facts.

The thesis is synthetically that there was no kidnapping of the minor, contrary to the initial premise of the criminal investigation which is what the child's parents maintain up to now. What happened was the accidental death of the child in flat of the tourist resort, then the cover up of this event through the concealment of her corpse and the simulation of the referred crime, carried out by the claimants Gerald and Kate McCann.

Going through the book, one is driven along the days of the investigation since the breaking news about the crime. The author underlines, at each step of the time-line, the various indices that present a match with the referred thesis - among others, the lack of bedroom break-in signs and of strange fingerprints (pp. 44 and 48), the presence of the press alerted by the group of friends of the couple (p. 48), the fact that the key witness Jane Tanner affirmed the sighting of the “pseudo-abductor" (sic) when two other protagonists, in the same place, saw nothing (p. 51), the inconsistencies of the statements and discrepancies of those elements of proof between themselves…

 
 
 
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...(pp. 53, 57, 59, 144), the statements of the Smith family (p. 115) and the evidence collected by the K9 team (pp. 157, 162, 167).

A first conclusion is that if the book is about an hypothetical checking of the facts or about the opinion of the author on how the evidence collected in the investigation should be read, one shouldn't speak of falsehood, untrue facts, and it doesn't make sense, without a better understanding, to discuss the "exceptio veritatis" (truth exception).

The means of obtaining evidence and the evidence referred to in the book are those of the criminal investigation and most of the facts that the book is concerned with (as well as those referred to in the documentary and interview), when related to the criminal investigation, are mostly facts that occurred or are documented in the investigation (n° 80 of the proven facts).

In our view, the issue, in this trial, is the exercise of the right of opinion by the defendant in that context.

This kind of view is, moreover, evident in the final conclusions of the book when the author himself says : For me and for detective inspectors who worked with me on the case up to October 2007, the results we have reached are as follows:

1. The minor Madeleine McCann died in apartment 5a of the Ocean Club, in Vila da Luz on the night of May 3, 2007;

2. A kidnapping simulation occurred;

3. Kate Healy and Gerald McCann are suspected of involvement in hiding the corpse of their daughter;

4. Death may have resulted from a tragic accident.

5.There is evidence of negligence in the guard and safety of the children (n° 24)."

The interview given by Gonçalo Amaral to the newspaper CdM 2 and published in the edition of July 24, 2008 is a way to advertise the book and therefore the thesis developed in it. Here the defendant reaffirms that thesis in so many answers as questions put to him : 1° the girl died in the apartment 2° the testimonies of Jane Tanner and Kate McCann are not credible 3° there are clues of crime simulation 4° there was concealment of the body (n° 48).

Note 02

The daily newspaper Correio da Manhã is from now on named “CdM”.

 
 
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The documentary develops the referred opinion in a more appealing way, as it is proper to the audiovisual support, giving it an appearance of police reconstruction of the facts. It steps from the expression of an opinion to the attempt to prove a thesis. It is the defendant Gonçalo Amaral who says it, while the narrator at the beginning of the program: "In the next 50 minutes I will prove that the child was not abducted and died in the holiday apartment in Praia da Luz" (N° 41).

In the documentary, this thesis is clearly stated as the contra-narrative of the abduction hypothesis, as the real alternative to it and to the shelving of the investigation for lack of evidence. This is why the challenge is "discover the truth about what happened that day. A death that many people want to cover up", ending the defendant with this conclusion: "I am sure that this fact [Madeleine McCann died in the apartment] on day will be revealed. The investigation was brutally interrupted and there was political and precipitated shelving. Some hide the truth, but later or earlier, the varnish will crack and the revelations will emerge. Only then there will be justice for Madeleine McCann” (n°s 41 and 42).

In either supports - book, interview, documentary - the presented thesis aims to be perceived as the real narrative of events, compared with the initially sustained in the investigation and by the claimants mediated abduction theory. The same thesis is still held as the truth that is hidden behind shelving determined by political reasons and subservience to the British authorities.

It is that, it appears, the meaning that the average reader attributes to the title "Maddie - the Truth of the Lie", the "truth" being the thesis of the book and the "lie" the abduction narrative.

Now the thesis that the minor died accidentally in the apartment and that this fact was hidden by her parents, who spread and fed, in order to deceive, an hypothesis of abduction, is not new, there's nothing new neither in the book, in the interview or in the documentary.

This theory of the facts comes from the own investigation, it is shaped in the chief inspector Tavares de Almeida's report (n° 9), it was an avenue pursued by the investigation (n°s  10 and 11), it determined the constitution of the claimants Gerald and Kate McCann as “arguidos" and was put within the reach of the media, and soon of the general public through a copy of the inquest (n°s 65 and 66) . 

 
 
 
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One wonders then what is the difference between 1) asserting – as it was done at a certain step of the investigation or as many commentators do – that there are indices of accidental death, concealment of the corpse and simulation of crime and 2) supporting this view as did the defendant Gonçalo Amaral in those three mediums.

There is one aspect that stands out in this comparison and it is the particular relationship between the defendant Gonçalo Amaral and the investigation.

The defendant is not referred to the investigation as a mere commentator of a criminal “fait-divers", a writer of police intrigues or a criminologist. Considering the matter in question here and what obviously contributes to the authority and credibility of his opinion, the defendant was the coordinator of the criminal investigation into the disappearance of Madeleine McCann from the day of the event up to October 2, 2007. It is this particular aspect conjugated with others that are appurtenances - as is the time coincidence between the shelving of the investigation on the one hand, and the launch of the book, the interview and the selling of the book on the other – that are part of the discussion on how to solve, in this case, the conflict between the right of the defendant and the rights of the claimants.

At the centre of this trial, there is a conflict between two existing rights, the right to good name and reputation of the claimants (through the presumption of innocence that they always were entitled to) and the right to freedom of expression of the defendant, in the concrete field of the right to opinion he is entitled to.

The legal protection of such rights of the claimants is based on the Universal Declaration of Human Rights (UDHR3, of which the article 12° states that no one will suffer, among others, attacks upon one's honour and reputation, stipulating that against such attacks anyone is entitled to the protection of the law.

However, the article 16°  of this great Declaration states, with equal protection, that "everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

The criteria of harmonization of the various consecrated rights results of the following art. 29°-2, which states that "in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others..

 
Note 03 The Universal Declaration of Human Rights (1948)
  In English here.
  En français ici.
 
 
 
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...and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

Also from the European Convention for the Protection of Human Rights and Fundamental Freedoms (4) results the protection of both rights.

Article 10°-1 states : "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises."

In spite of the freedom of expression affirmed in this norm and of the prohibition of any interference in it by public authorities of each country, the paragraph 2 of the same article states that "the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

The same Convention consecrates in art. 6°-2  one of the fundamental pillars of societies governed by the principles of the democratic State of Law, establishing that "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".

As it will appear below, the activity of the European Court of Human Rights (5) in interpreting and precipitating in the concrete case of those standards reveals to be particularly important [retain up yet the principle of the reception of the international law into Portuguese law, in  art. 8°-1 of the Constitution of the Portuguese Republic (6)].

The CRP protects the rights analyzed in the chapter on rights, freedoms and personal guarantees, which is the part of fundamental rights.

Indeed, the  art. 26°-1 of that legal document, under the heading “other personal rights”, states that to all are recognized rights ( ... ) to good name and reputation ( ... )"

 
Note 04

The European Convention for the Protection of Human Rights and Fundamental Freedoms is currently shortened in the Convention or the European Convention on Human Rights.

Note 05

In order to avoid any possible confusion, in English, between European Court of Human Rights (ECHR) and  European Convention on Human Rights (as well ECHR), the first will be alluded to as ECHR, while the second will be named by its shortened forms (see above)

Note 06 The Constitution of the Portuguese Republic will be mentioned as CRP.
  Link to the CRP in English
  Link to the CRP in French 
 
 
 
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However, in the same fundamental legal document and with equal dignity, the article 37°   establishes the protection of the freedom of expression, stating its paragraph 1 that "all have the right to freely express and divulge their thoughts by words, images or by any other means, as well as the right to inform, to seek information and be informed without hindrance or discrimination".

In spite of the value of this fundamental freedom, the paragraph 3 of the same article       refers to offenses committed in the exercise of this freedom by handing them over to the area of the general principles of criminal law and of the unlawful regarding simple social order, while paragraph 4 points clearly to the limits which the same freedom may be subject to, recognizing "to all persons, private or collective ( ... ) under conditions of equality and effectiveness , the right to reply and rectify as well as the right to be compensated for damages suffered."

Glossing the said paragraph 3, Vital Moreira and Gomes Canotilho write : "From n°3 results, however, that there are certain limits to the exercise of the right to freely express and divulge one's thoughts. The freedom of expression and information can not actually take precedence over the fundamental rights of citizens to good name and reputation, to moral integrity, to privacy” [CRP] .

In the Constitution and also interesting for the present case, the freedom of the press is also protected, being one of its greatest exponents "the freedom of expression and creativity for journalists and collaborators” [art. 38°-2a)].

It should be noted that the Constitution itself provides the criteria to resolve the eventual conflict between fundamental rights by establishing in article 18-2 that the legal restrictions on these rights "must (...) be limited to what is necessary to protect other rights or constitutionally protected interests".

The Constitution also welcomes the presumption of innocence as one of the guarantees of the criminal case (art. 32°-2).

Under the aegis of ordinary law, the article 70° of the CC establishes the general protection of the personality, stating that the law protects individuals against any illegal offense or threat of offence to their physical or moral integrity.

On the other hand, still in that CC, the article 483º generically states that "anyone who, intentionally or recklessly, unlawfully violates the rights of others...

 
 
 
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... or any legal disposition intending to protect interests of others has to compensate the injured party for damages resulting from violation", and the article 484º specifically establishes that "anyone who claims or spreads a fact capable of harming the credit or the good name of any person, natural or legal, is liable for the damages suffered".

In this regard Pires de Lima and Antunes Varela teach that "whether, by natural or legal persons, a subjective right to credit and good name exists or not, a conduct threatening to cause them harm, in the prescribed terms, is considered as expressly anti-juridical. Never mind that the stated or disclosed fact corresponds to the truth or not, as long as it likely can, given the circumstances of the case, reduce the confidence in the ability and willingness of the person to fulfil their obligations (loss of credit) or shake the prestige that the person enjoys or the good image the person has (loss of good name) in the social environment in which the person lives or carries on their business" annotated CC,, Vol . I, Coimbra Editora, p. 486].

The CC also contains a norm on conflict of rights, pointing, article 335°-1,2, to two fundamental rules in this regard, namely :

"1. Having a collision of rights, equal or of the same kind, the holders (of those rights) should give in to the extent of the necessary for all (the rights) producing their effect without major detriment for any of them .

2. If the rights are unequal or of a different kind, prevails the one that should be considered superior."
 

This being the general outline of the law applicable to the decision arisen in this trial, it is important to know how the Superior Courts fall and solve the conflict between the contemplated rights, starting with the ECHR, of which the jurisprudence is particularly industrious and interesting in this matter.

From this same jurisprudence one retains that in contrast to the traditional current of the Portuguese higher courts, this court does not accept, in principle, the priority of the right to honour and good over the freedom of expression/freedom of the press [are examples of this traditional line, among others, the STJ's Rulings (7) of February 14 2002 and March 7 2002 reported in reviews n° 3379/01 and 184/02, of the 1st and 7th sections]. 
 

Note 07

 Supreme Court of Justice.

 
 
 
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Very differently, according to the jurisprudence of the case-law of the ECHR, freedom of speech and press prevails, admitting strict restrictions, especially when is at stake the debate of matters of public interest.

Thus, this jurisprudence  follows an enunciation of ideas with the following essential core: (i) freedom of expression is a postulate of a democratic society and of a State of law, being the basis of pluralism, tolerance and open-mindedness necessary to progress in this kind of societies and to the individual development of its members, (ii) the limitations to freedom of expression must be anticipated by law, pursue a legitimate aim and be necessary in a democratic society, (iii) in debates of matters of public interest the possibility of restrictions on freedom of expression is particularly limited, (iv) the politicians, public figures and senior officials of public administration, when exercising their functions, are subject to wider limits of critic than individuals, (v) considering the limits of freedom of expression, one should distinguish between factual assertions and value judgements, between statements addressed to the opinions of the opponents as opposed to judgements ad hominem and between what is critic and what is insult and (vi) the press has the duty to impart information and ideas on matters of public interest and in doing so is allowed to a certain amount of exaggeration, even of provocation [cf., among many others, Smolorz vs Poland, Thoma vs Luxembourg and Palomo Sanchez and Others vs Spain ; an  exhaustive  enunciation of the fundamental guidelines of  that learned Court of Justice can be read in a Judgement of the Appeal Court of Lisbon of February 14 2012, rapporteur Hon. Judge Rijo Ferreira, available at www.dgsi.pt].

The most recent national jurisprudence is echoing these guidelines, stressing the importance of the decisions of the European Court of Human Rights in implementing the boundary between freedom of expression and the rights to honour and good name of the concerned persons and the contribution of those decisions in resolving each particular conflict between the two rights. In this sense, the Ruling of February 7 2008 says "it seems to us that the position of the ECHR results in an imposition on the way of thinking. There is no justification to think, from the outset, on whether a journalistic piece offends someone. It should rather start from the freedom that the respective authors enjoy. Only then one should seek...

 
 
 
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… whether is justified – in respect of the referential criteria mentioned above, with the inclusion of a margin of proper appreciation by the internal organs of each of the Convention's  signatory States - the restrictive interference in the field of that same freedom and the consequent move to legal sanctions.

This does not mean, however - in our view - that the cases in which such a restrictive interference is justified aren't intensely relevant. It is enough to read article 10°-2 to weight what it contains in terms of essential values for human beings "[Review No. 4403/07 of 2nd Section. In the same sense, can be read the Ruling of March 12 2009 in the Review N° 2972/08].

It should also refer to the content of the right to honour and the qualities or attributes that it welcomes.

The STJ’s Ruling of May 27 2008 , quoted above, says : "The honour of the person translates therefore into the positive value that they infer themselves from the core of their being, that is the moral and ethic substrate of their existence, while the social consideration, the good name and the reputation translate into the judgment by others about every one. Correspondingly, the right to good name and to reputation is essentially for the person not be offended or injured in their honour, dignity or social consideration by imputation of others and to fight back against this offence and to obtain redress" [ idem ].

Capelo de Sousa teaches that "honour covers immediately the projection of the value of human dignity, which is innate, offered by nature equally to all human beings, unlikely to be lost by any man in any circumstance ( ... ). In a broad sense, it also includes the good name and reputation, as syntheses of social appreciation for determining qualities of uniqueness of each individual at the intellectual, moral, sexual, family, professional or political level" [The Personality General Law, 1995 , p. 303] .

Brito Correia added that honour also includes " the qualities acquired throughout life, by the individual's effort or otherwise and in various aspects (family, political, professional, scientific, literary, artistic, commercial, etc.). It covers inter alia, character, honesty, righteousness, loyalty, etc., corresponding to a sense of personal self-esteem. It is based on individual awareness of one's own worth : self-recognition and self-assessment". According to the same author, …

 
 
 
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..."the law protects, however, not only that personal feeling of own worth, which can call up the internal honour, but above the projection in the social consciousness of all the personal values of each individual, which can be called external honour : the qualities a person needs to be respected in a social environment, including the good name and the reputation, the social consideration" [ op. cit. p. 587] .

The protection of the rights of the claimants to their good name and reputation is, in this case, closely related to the presumption of innocence.

The claimants Gerald and Kate McCann were made arguidos (formal suspects) in the criminal investigation, a status that had the function to guarantee their rights (though not being interpreted this way by the general public) and ceased with the closure of the investigation having the dispatch (AG) report concluded :"It has not been possible to obtain any piece of evidence that would allow for a average man, under the light of the criteria of logics, of normality and of the general rules of experience, to formulate any lucid, sensate, serious and honest conclusion about the circumstances under which the child was removed from the apartment (whether dead or alive, whether killed in a neglectful homicide or an intended homicide, whether the victim of a targeted abduction or an opportunistic abduction), nor even to produce a consistent prognosis about her destiny and inclusively - the most dramatic - to establish whether she is still alive or if she is dead, as seems more likely. (…) Therefore, after everything seen, analysed and duly pondered, facing all that is left exposed, we settle (…) the archiving of the process concerning the “arguidos" Gerald Patrick McCann and Kate Marie Healy, because there are no indications of their practice of any crime" (n° 15).

In the case-law of the ECHR, the principle of presumption of innocence imposes a standard of conduct for all agents, public servants and magistrates involved in the administration of criminal justice.

The presumption of innocence prohibits, according to these provisions, the premature expression of opinions or beliefs of guilt by the courts but also assumptions by public officers involved in procedures which might lead the public to suspect the responsibility of the suspects in the facts under investigation. Accordingly in the Karaman vs Germany case, the decision claims that "the Court has previously held in this context that article 6°-2 aims at preventing undermining of a fair criminal trial by prejudicial statements made in close connection with proceedings. It not only prohibits the premature expression by the tribunal itself of the opinion the person «charged with a criminal offence» is guilty before he has been so proved according to the law, but also covers statements...

 
 
 
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made by other public officials about pending criminal investigations which encourage the public to believe the suspect guilty and prejudge an assessment of the facts by the competent judicial authority [HUDOC  8].

In the Allen vs UK case, the ECHR emphasised the importance of the presumption after the acquittal or dismissal of the criminal investigation, explaining that this principle prevents suspects or defendants in such cases are treated as if they were in fact responsible for the criminal offences of which they were accused and stressing that without this second level of protection – the level of full respect for acquittal or archiving – the presumption of innocence would remain illusory or merely ideal.

Likewise, the presumption of innocence requires that the absence of guilt that emanates from it is respected, after the acquittal or dismissal, in all legal proceedings of any kind and by any authority that comes into contact with these facts [idem Allen vs United Kingdom].

In this case, the claimants Kate and Gerald McCann never ceased to benefit from this presumption of innocence and from the behaviour imperative that it places on national judicial and justice authorities and on all the civil servants and agents.

The defendant Goncalo Amaral was the coordinator of criminal investigation from the date of the crime breaking news and October 2nd, 2007 (n° 12).

On July 1 2008, GA retired from the Judicial Police, having the book "Maddie - A Verdade da Mentira" been released on the 24th and sold with the same day edition of the newspaper 'Correio da Manhã', an edition where was published the interview which is part of this lawsuit (n°s 13, 25, 26 and 48).

"The Police have the responsibility of defending democratic legality, insuring internal security and protecting the citizens' rights” [article 272 of the [CRP] ."The Judicial Police is an upper organ of the criminal police assisting the administration of justice, hierarchically organised, dependent on the Minister of Justice and supervised by law [article 1 of the Organic Law of the Judicial Police, approved by Decree-Law n° 275- A / 2000 of November 9, as amended by Decree-Law No. 235/2005, of December 30, then in force].

The criminal investigation chief-coordinators are authorities of criminal police under the terms and for the purposes of criminal procedural law [article 11°-g of the same law].

 
Note 08 The HUDOC database provides access to the case-law of the Court, the European Commission of Human Rights' decisions and reports and the Committee of Ministers' resolutions.
(
 
 
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Under the Disciplinary Regulation of the Judicial Police, the duty of confidentiality is one of the general duties of the members of the Judicial Police [cf. art. 5°- of the Regulation approved by Decree-Law No. 196/94, of July 21].

Alongside this general duty of confidentiality, the Organic Law of the Judicial Police requires from the civil servants working in the Judicial Police a duty of reserve, prescribing that (...) "they cannot make public disclosures related to lawsuits or matter of reserved nature other than what is provided for in this law on public information and preventive actions among the population, and also in the provisions of the criminal procedure law" [art.12°-2]. Even so the statements, when admissible, (…) "are subjects to prior authorisation provided by the national director or the national deputy directors, at risk of disciplinary proceedings, maintaining the eventual criminal liability" [art. 12°-3].

The duty of reserve is a functional requirement common to magistrates and organs of criminal police. As an example, in the case of the magistrates of the Public Ministry, the ordinary law postulates that this duty will remain after retirement, establishing the article 148°-7 of the Statute that "retired judges must respect the reserve required by their condition." (9)

It is a duty that is essential to the preservation of public confidence in the institutions of the administration of justice. The duty of reserve protects the purposes of the criminal action, but also the physical and moral integrity, the freedom and the dignity of those concerned by that action.

The criminal investigation officers, retired for a motive unlike disciplinary sanction, retain special rights, being holders of an identification card for recognition of their quality and the rights they enjoy [article 149°-1,2 of the Organic Law of the Judicial Police and Ordinance No. 96/2002 of 31 January].

The statute of the retirement [approved by Decree-Law 498/72 of December 9] establishes, from its original wording in the respective article 74°-11, that the retired, apart from his right to a retirement pension, remains bound to the civil service, keeping the titles and the category of the position he held and the rights and duties that do not depend on being in activity.

According to the note of the Attorney General Department's advisory Council on February 16, 2006 (Esteves Remedio, in www.ministeriopublico.pt).

 
Note 09     The Public Ministry site was remodelled in February. There is an English version  (http://en.ministeriopublico.pt/) and, more specifically a page  dedicated to the Advisary Council
 (
http://www.ministeriopublico.pt/pagina/conselho-consultivo-da-procuradoria-geral-da-republica), only in Portuguese, where are gathered all the recommendations of that consultative body (public access).
 
 
 
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The retirement legal relationship is, compared to the public employment legal relationship, a relationship less intense where there is a blurring of the ties between the retired and the Administration, expressed in the reduction of rights and duties. There is even so a 'bond to the civil service', which materialises in conserving the titles and the position of the function exercised and the rights and duties that are not dependent on activity status"

The same notice concluded that "the retired remains subject to duties of private conduct expressed in particular in the abstention of practice of facts integrators of crimes that have a relevant connection with the functions previously carried out and thus affect actually the functioning of the service or in a serious way the dignity and the prestige of the function or of the Administration" (idem).

Bearing in mind that legal mosaic, how to solve the conflict in this case between the rights of the claimants Gerald and Kate McCann to their good name and reputation and the defendant Gonçalo Amaral's right to his opinion as resorting to freedom of expression he's entitled to ?

It appears that the conflict should be solved with the factual data that are present from the outset and that reveal the special condition of the defendant in front of the criminal investigation, condition that he capitalises in the book, the interview and the documentary.

In this documentary, the defendant is explicit right in the opening :

"My name is Gonçalo Amaral and I was investigator of the Judicial Police for 27 years. I coordinated the investigation of Madeleine McCann's disappearance on May 3 2007. In the next 50 minutes I will prove that the child was not kidnapped" (n° 41).

The book conveys the idea that the truth of the investigation is merely formal, while the truth of the author (that would have been met at the end of the line of inquiry he followed up to his removal from the case) is the material truth - "This book still has a greater purpose. The purpose to contribute to the discovery of material truth and the realisation of justice" (n° 23) .

There is no doubt that it is the proper defendant who calls his condition of former coordinator of the criminal investigation and that it is through this statute that the book, the interview and the documentary distinguish themselves - self-qualifying – from the opinion of television commentators, writers or other who gloss about the subject.

But, at least in our view, that same status cannot but mark the limits of the defendant's freedom of expression when compared to the one detained by those others.

 
 
 
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Having been in charge of that investigation as a member of the Judicial Police, the defendant Gonçalo Amaral, although retired on July 1 2008, did not enjoy, on the following July 24, in respect of the outcome of the criminal investigation released on the 21st of the same month and year, a large and full freedom of expression.

This freedom was conditioned by the functions he had, functions that imposed him special duties that traverse the status of retirement, including the duty of reserve.

In this concrete situation, despite the personal reasons that the defendant invokes in the introductory note of the book, the freedom of expression should cede through the imperative of that reserve.

It was not what happened and the truth is that, on July 24 2008, scant three days after the release of the dispatch shelving the investigation for lack of proof, the book was launched, sold with the newspaper’s edition, and the interview was published.

The time-line displays well the intention to call for the contradictory, in the public domain, the shelving of the investigation, comparing it with the thesis of the previous line of investigation, told as the true one by a person who had been responsible for the same investigation.

In this form of resolving the conflict between the rights is revealed the illegality of the conduct of the defendant Gonçalo Amaral in respect of the effects of article 484° of the CC.

In disagreement with this judgement, the defendants 1°, 2° and 3° (10) lodged an appeal against it.

The Lisbon Appeal Court granted those requests and revoked the appealed decision, judging the lawsuit unfounded concerning the appellants and acquitting them of all the requests. Their allegations were expressed in the following way :

In terms of personality rights, article 26°-1 of the CRP states that the rights to a person’s good name and reputation are recognised, as well as protection of the intimacy of private and family life..

The same fundamental law protects with equal dignity freedom of expression, stating in article 37°-1 that everyone has the right to freely express and disclose their thought...

 
Note 10

 The TV Channel TVI didn’t.

 
 
 
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...through speech, via image or by any other means, as well as the right to inform, to look for information and to be informed without hindrance or discrimination.

Freedom of the press is established under article 38°-2, concerning freedom of expression and creativity for journalists and collaborators.

Article 18°-2 establishes, in the event of a conflict between fundamental rights, that legal restrictions on these rights are limited to the need of preserving other constitutionally protected rights or interests.

For its part, the ordinary law enshrines in article 70° of the CC, as a principle, that the law protects individuals against unlawful offence or threat of offence to their physical or moral integrity, while according to article 80° of the CC everyone must maintain discretion about someone else’s intimacy of private life.

In case of conflict of equal rights or of the same species, the holders of these rights must, in terms of article 335°-1, assign to the extent necessary for all rights to take effect without major damage for any of them. Article 335°-2 states that, all rights being uneven or of different species, prevails the one that has to be considered higher.

Thus, as the dominant jurisprudence understands :

"One of the limitations to freedom of information, which therefore is not an absolute right, is the preservation of the right to a good name. Journalists, media, are bound by ethical, professional duties, rigour and objectivity.

It is up to the media's right, social function, to broadcast news and express opinions, critical or not, the importance being that they do so with respect for the truth and the intangible rights of others, as personality rights.

The right to honour, in a broader sense, and the right to freedom of press and opinion are traditional occasions of conflict.

Criticism is limited by the rights of the targeted person, but does not stop being legitimate when being trenchant and sharp but not offensive, because that is often the style of writers.

Criticising implies banning ; censorship conveyed by the media only stops being legitimate as a manifestation of individual freedom when it expresses objective anti-juridicity, violating the most personal rights and affecting, more or less lastingly...

 
 
 
Page 17

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... according to people's memory, values which must be preserved as the rights here at stake to honour, good name and social reputation. (ruling of the STJ dated 20/01/2010, www.dgsi.pt)

In the case before us, besides the reporting of the facts that are part of the investigation into the disappearance of the minor Madeleine McCann, the analysis of the book and other published matter shows that the now first appellant sustains the thesis that there was no kidnapping, but accidental death of the child, followed by a cover-up - concealment of the body and kidnapping simulation – by the applicants Gerald and Kate McCann, now the respondent party .

It results from the above-mentioned publication that evidence elements and clues it reports to are essentially those referred and documented in the respective criminal investigation.

Not withstanding, the exposed thesis, according to which the minor died accidentally and the parents hid the fact, spreading the kidnapping hypothesis in order to deceive, is not new, since it is also in the report referred to at n° 9 of the proven facts, having determined the constitution of the respondent party as arguidos and having been made public by the media after the digitalisation of the investigation files was provided ( n°s 65 and 66 of the proven facts).

As determined by the appeal ruling heard in this section regarding the appended injunction, the first appellant intended through (his book) to outline his vision of the facts, once the institution to which he belonged (the PJ) did not allow him, as a professional police officer in a criminal investigation, to respond to attacks against its expertise and honour. We must therefore consider the publication of the book as reflecting the legitimate exercise of the right to opinion.

And it results from what has been proven that, besides the facts at stake were abundantly engraved in the investigation and even made public at the instigation of the Republic Attorney General, the respondents are the ones who, taking advantage of an easy access, multiplied interviews and interventions in the national and international media, so that the conclusion is they themselves voluntarily limited their rights to discretion and intimacy of private life.

By this kind of proceeding, they opened the way for anyone to equally express their view on the case, contradicting their theory – without doing anything but practicing... 

 
 
 
Page 18

Page 18
a lawful and constitutionally sanctioned right to opinion and freedom of expression of their thoughts.

Moreover, we do not see how the right of the respondents to enjoy, after their constitution as “arguidos", the guarantees of a criminal trial – including the right to a fair investigation and the right to liberty and security - could be affected by the content of a book that essentially describes and interprets facts that are part of an investigation the contents of which have been made public.

Although they were not considered sufficient to elicit criminal charges, nothing prevents such facts of being subject to various assessments, especially in a literary kind of work.

Therefore, and as rights are enshrined namely in articles 37° and 38° of the CRP, the publication in question has to be considered legitimate.

The appealed decision, however, reckons that the first (here) appellant, Gonçalo Amaral, because he coordinated the criminal investigation into the disappearance of Madeleine McCann until 2/10/2007, remained, even after his retirement on 1/07/2008, subject to the duties of silence and reserve, regularly imposed on officers of the Judicial Police in activity.

Under such terms, and despite the personal reasons given in the prologue of the book, the appellant, in case of collision with the rights to good name and reputation of the respondents, would not enjoy the full and complete freedom of expression concerning the investigation's conclusions, his conduct being deemed unlawful under Article 484° of the CC.

From what has been said above on this subject, it is clear that the expounded arguments are not worth considering.

Indeed, irrespective of the reasons given by the appellant for publication, it is hardly understandable that a civil servant, even more a retired one, should carry on his silence and reserve duties, thus limiting the exercise of his right to opinion as to the interpretation of facts already made public by the judicial authority and widely discussed (actually largely at the instigation of the protagonists themselves) in national and international media.

In the absence of the appealed decision's first presupposition, it must be concluded, against it, to the lack of eligibility of any of the respondent party's demands - remaining without effect the re-assessment of the material facts, secondarily requested

 
 
 
Page 19

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Both claimants (here appellants) lodged an appeal for reviewing that acórdão (note : to avoid confusion, this word always designates the decision of the Appeal Court).

Provided allegations and gathered the legal visas, it's up to deciding.

2 – Fundamental principles

1.2. In the appealed acórdão the following facts are considered proven :

1. The applicants Gerald McCann and Kate (sic) are married to each other.

2. The applicant Madeleine McCann was born on 12.5.2003 , daughter of Kate McCann and Gerald McCann.

3. The applicant Sean McCann was born on 1/2/2005, son of  Kate McCann and Gerald McCann.

4. The applicant Amelie McCann was born on 1/2/2005 , daughter of Kate McCann and Gerald McCann. (11)

5. The applicant Madeleine McCann has been missing since 3/5/2007 , resulting in the criminal investigation n° 201/07.0 GALGS, opened by the prosecutor of Portimão.

6. The dogs Eddie and Keela, from the British police, have detected human blood and cadaver scent in the apartment 5A of the Ocean Club.

7. The dogs Eddie and Keela, from the British police, have detected human blood and cadaver scent in the vehicle rented by the applicants Kate McCann and Gerald McCann after Madeleine's disappearance.

8. The applicants Kate McCann and Gerald McCann were constituted (by lawyer) assisted witnesses (arguidos) in the criminal investigation.

9.  On 10/9/2007 (pp. 2587-2602 of the criminal investigation), Chief-Inspector Tavares de Almeida wrote a report and particularly the following :

"Given what we could establish, the facts point towards the death of Madeleine McCann during the evening of May 3 2007, in the apartment 5A of Praia da Luz Ocean Club resort, occupied by the McCann couple and their three children (p. 2599) (... )

Taking into account all that was presented in the autos, it results that :

A) The minor Madeleine McCann died in apartment 5A of the Ocean Club in Praia da Luz in the evening of May 3, 2007 ;

B) A simulation of abduction took place ;

 
Note 11

These proven facts were established in the first instance lawsuit where the five members of the McCann family were claimants. In this instance's sentence the requests of the three McCann children were dismissed. Their parents could have lodged an appeal on their behalf, but they chose not to. Hence in the  judgement by the Appeal Court Kate and Gerald McCann were the only respondents.

 
 
 
Page 20

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C) In order to make possible the death of the minor before 22h, a story about checking on the McCann children, as they slept, was invented ;

D) Kate and Gerald McCann are involved in the concealment of the body of their daughter MMC;

E) On this date it seems there is no solid evidence that the death of the minor was not due to a tragic accident;

F) Given what has been confirmed so far, everything indicates that the couple McCann, as self-defence, does not want to deliver immediately and voluntarily the body, existing a high probability that the same was removed from the place where it was originally disposed of. This situation is likely to raise questions about the circumstances in which occurred the death of the minor.

Thus we suggest that minutes be delivered to the prosecutor of Lagos aiming :

G) A possible new interrogation of assisted witnesses Kate McCann and Gerald McCann ;

H) Evaluating the adequate measure of constraint to be applied in the case (folio 2601 of the minutes)" (al.AT).

10. On 10/9/2007 (p. 2680 of the criminal investigation),  the prosecutor in charge of the investigation issued an order which in particular says this:

"During the investigation which goes on regarding the disappearance of Madeleine McCann, the proceedings being therefore open either to confirm or to deny that the occurrence of the disappearance is related to the crimes of kidnapping, homicide, exposure or abandonment and concealment of corpse, and in accordance with the established plan, the need was felt to gather information on the actual time of the disappearance, verify the location of each stakeholder – from the McCann couple to the group of friends with whom they were on holiday in tourist apartments in the Praia da Luz Ocean Club, i.e Michelle Jane Tanner, Russell James O'Brien, David Matthew Oldfield, Rachael Jean Mampilly David Anthony Payne, Fiona Elaine Payne and Diana Webster – when the events occurred and in the moments that followed, and determine the movements of the assisted witnesses, Gerald McCann and Kate Healy, during their stay in Portugal, while also establishing connections between all stakeholders and third parties.

In this sense, and because the following requested inquiries are essential for the discovery of the truth, especially the analysis of the  information contained in the telephone exchanges' ... 

 
 
 
Page 21

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...between the McCann couple and their friends, and other phone numbers, which have shown to be related to events of May 3 2007 evening, the minutes are delivered to the Judge of Criminal Investigation (JCI)”. (12)

11. In page 3170 of the criminal investigation, on 3/12/2007, the JCI of Portimão issued a decree in which he stated particularly this:

"Since the investigation, in these autos, concerns the practice of kidnapping, homicide, exposure or abandonment and concealment of corpse, the first three crimes being punished with a sentence of more than 3 years imprisonment, and since it seems convenient to identify the person who exhibited suspicious behaviour in the vicinity of the place where the child disappeared from, as mentioned in statements of folios 3150, 3154 and sq, the data requested by the public prosecutor being thus very important to discover the truth, I order (...) the soliciting telecommunications operator Portugal Telecom.".

12. The defendant Gonçalo Amaral was, until 2/10/2007, the PJ inspector in charge of coordinating the investigation into the disappearance of the applicant Madeleine McCann.

13. The defendant GA is retired from the PJ since 1/7/2008 (n° 19).

14. On 21/7/2008, the Republic General Prosecutor informed through a "note for the social communication" that the investigation mentioned in 5. would be shelved and could be reopened at the instigation of the Public Ministry or at the request of any interested party, if new evidence brought forth serious, relevant and consistent inquiries (n° 20).

15. The archiving dispatch concerning the criminal investigation, issued the 21/7/2008 by the prosecutor, says in particular this :

"Taking into account that certain points in the formal suspects' ('arguidos') and witnesses' statements revealed contradiction, at least apparently, or lacked physical confirmation, it was decided to carry out the "reconstitution of the fact", an operation that is consecrated in article 150 of the Penal Process Code (CPP) (13) in the sense of duly clarifying, on the very location of the facts, the very important following details, among others :1) The physical, real and effective proximity between Jane Tanner, Gerald McCann and Jeremy Wilkins, at the moment when the first person walked by them, and which coincided with the sighting of the supposed suspect, carrying a child. From our perspective it is strange that neither Gerald McCann nor Jeremy Wilkins...

 
Note 12

The penal process is divided in 3 phases, the first, mandatory, being the criminal investigation. It is taken in charge by various police forces, directed by the Public Ministry, the PM itself being  under the control of a criminal inquiry judge. The second phase is the criminal inquiry. It is not mandatory and has to be requested either by the arguido(s), by the assistant(s) of the process or by a senior magistrate, but never by the Public Ministry. This phase, a kind of recourse against the criminal investigation, is orchestrated by the criminal inquiry judge and culminates in a crucial contradictory debate. Neither the McCann couple nor the "hierarchy" requested the criminal inquiry phase, a manner of agreeing with the conclusions of the criminal investigation. The last phase is eventually the judgement.

Note 13

The Penal Process Code (http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=199&tabela=leis)

 
 
 
Page 22

Page 22
... saw her, or the alleged abductor, despite the exiguity of the space and the tranquillity of the area.

2) The situation concerning the window to the bedroom where Madeleine slept, together with the twins, which was open, according to Kate. It has seemed necessary to clarify if there was a draught, since movement of the curtains and pressure under the bedroom door are mentioned, which, eventually, could be verified through the reconstitution.

3) The establishment of a timeline and of a line of effective checking on the minors that were left alone in the apartments, given that, if it is believed that such checking was as tight as the witnesses and the assisted witnesses describe it, it would be, at least, very difficult to reunite conditions for the introduction of an abductor in the residence and the posterior exit of said abductor with a child, particularly through a reduced width window. It is added that the supposed abductor could only pass, through that window, holding the minor in a different position (vertical) from the one that witness Jane Tanner saw (horizontal).

4) What happened during the time lapse between approximately 6.45/7 p.m. - the time at which Madeleine was seen for the last time in the apartment by a different person (David Payne) from her parents or siblings - and the time at which the disappearance is reported by Kate Healy - at around 10 p.m.

5) The immediate appreciation of evidence, or in other words, the fulfilment of the principle of contiguity of evidence offers obvious and well known advantages to form a conviction, as firm as possible, about what was seen by Jane Tanner and the other interposers, and, eventually, to dismiss once and for all any doubts that may subsist concerning the innocence of the missing child's parents.

To achieve this according to the standards and conventions in force, legal procedures were instituted and the presence of the witnesses was requested, inviting them to participate, also appealing to solidarity with the McCann couple, as it is certain that since the beginning they adhered to that process diligence.

Nevertheless, despite national authorities assuming all measures to render their trip to Portugal viable, for unknown reasons, after the many doubts that they raised about...

 
 
 
Page 23

Page 23
...the necessity and opportunity of their trip were clarified several times, witnesses chose not to attend, which made the reconstitution impractical.

We believe that the main damage was caused to the McCann, who lost the possibility to prove what they have protested since they were constituted arguidos (14) : their innocence in relation to the fateful event. The investigation was also disturbed, because said facts remained without clarification (...).

This (15) shows that the parents were not persistently worried about their children [and] that they didn't check on them like they afterwards declared they did, rather neglecting their duty to protect those same children, although not in a temerarious, or gross, manner (...)

While the fact that Madeleine disappeared from apartment 5A of the resort Ocean Club is inescapable, the manner and circumstances under which this happened are unknown - despite the numerous diligences made on that purpose -, therefore the range of crimes that were conjectured and referred to during the investigation remains untouched (...)

Concerning the other surmised crimes (16), they are no more than that and in spite of our perception that, due to its high degree of probability, the occurrence of a homicide cannot be discarded, such cannot be more than a mere supposition, due to the lack of supporting elements in the files.

It appears that the non involvement of the parents, assisted witnesses, in any penally relevant action stems from the objective circumstances of them not being inside the apartment when Madeleine disappeared, from the normal behaviour that they displayed until said disappearance and afterwards, as can be amply concluded from witness statements, from the telephone communications analysis and also from the forensics' conclusions, namely the reports from the (Birmingham) Forensic Science Service (FSS) and from the National Institute for Legal Medicine.

To this should be added that in fact none of the clues that led to their constitution as “arguidos" was later confirmed or consolidated. Let's judge it: the information concerning a previous alert of the media before the police was not confirmed, the residues that were marked by the dogs were not corroborated in laboratory, and the initial indications from the above transcribed email (17) better examined afterwards, that ended up appearing to be inconclusive.

Even if hypothesising that Gerald and Kate McCann might be responsible over the child's death, it would still have to be explained how, where, when, with what means, with whose help and where to they freed themselves of her body within the restricted...

 
Note 14

An "arguido" is a formal suspect, against whom certain supported elements exist, but who is endowed with the presumption of innocence, a principal that here is fully realised. This status is attributed, in order to establish the material truth, on suggestion of the police by the Public Ministry which assumes the responsibility of doing do. The arguido (a) has, it is mandatory, to be assisted by a lawyer. In French an arguido is a "témoin assisté".

Note 15 The fact that, according to Pamela F, a child, possibly MMC, had cried during more than an hour on May 1
Note 16  "crimes that aren't associated to neglect”.
Note 17

The email on the preliminary DNA analysis by the FSS of the samples collected in the car hired by the MCs

 
 
 
Page 24

Page 24
... time frame that would have been available for them to do so. Their daily routine, until the 3rd of May, had been circumscribed to the narrow borders of the Ocean Club resort and to the beach next to it, unknowing the surrounding and, apart from the English friends that were with them on holiday, they had no known friends or contacts in Portugal (…)

Tests and analyses were performed in two of the most prestigious and credentialed institutions - the National Institute for Legal Medicine and the British Forensic Science Service -, their final results having neither positively evaluated the collected residues nor corroborated the dogs' alerts.

In spite of all this, it was not possible to obtain any evidence that would allow for a average man, enlightened by criteria of logics, of norms and of the general rules of experience, to formulate any lucid, sensate, serious and honest conclusion about the circumstances under which the child was removed from the apartment (whether dead or alive, whether killed in a neglectful homicide or an intended homicide, whether the victim of a targeted or opportunistic abduction), nor even to produce a consistent prognosis about her destiny and inclusively – and that's the most dramatic - to establish whether she is still alive or, as it seems the more likely, she is dead.

Therefore, everything having been examined, analysed and duly pondered, considering what is left exposed, we determined the archiving of the autos concerning the (by lawyer) assisted witnesses Gerald Patrick McCann and Kate Marie Healy, due to the lack of clues of their practising any crime”.

16. The defendant Guerra & Paz, Editores SA  is a commercial company whose objective is namely editing, publishing and trading books, import and export included.

17. On 10/03/2008, defendants Guerra & Paz, Editores SA and Gonçalo Amaral celebrated a written agreement (attached at pp. 277-281), referred to as "copyright transfer contract", in terms of which the defendant GA yields to defendant G&P for a period of ten years, the exclusivity of copyrights of the book Maddie - a Verdade da Mentira in printed or electronic form, in any language ​​and in the whole world.

18. The 4a -1 clause of the agreement is worded as follows :

"The remuneration to be paid by the first contractor to the second contractor, for copyrights associated with editions of his book commercialised in Portugal, will be : a) 12 % of the selling price for each copy sold (VAT excluded) up to 30.000 copies b) 14 % of the selling price for each copy sold (VAT excluded)...

 
 
 
Page 25

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… from 30.001 to 50.000 copies c) 16% of the selling price for each copy sold (VAT excluded) from 50.001 on".

19. 5a-2 clause of the agreement is worded as follows :

"If the first contractor sells the copy rights of the book in other languages ​​in any country, the liquid income of this sale, net of costs directly related to the sale transaction, will be shared between the first and second contractors in equal parts, i.e 50% for each".

20. The defendant Gonçalo Amaral is the author of the book Maddie - A Verdade da Mentira, published by the defendant Guerra & Paz, Editores SA.

21. On the cover of the book stands, in red, the word "confidential" and on the 4th cover it reads "Reserved reading" and "contains unique revelations".

22. The data sheet of the book (p. 4) says namely this : "Review: Fernanda Abreu. Cover and pagination : Ilidio J.B. Vasco. Photography author : Sandra Sousa Santos © Guerra & Paz, Editores SA. 2008. All rights reserved. © Cofina media for photographs and info engraving, developed by Nuno Costa."

23. Is part of "Maddie – A Verdade da Mentira" particularly the following prologue:

This book is rooted in the need I felt to restore my reputation, which has been undermined in the public arena, without the institution to which I have belonged for 26 years, the Portuguese Judicial Police, allowing me to defend myself or to do it institutionally. I asked permission to speak in this sense, that request remained unanswered. I strictly followed the rules of the PJ and I kept silent. This, however, lacerated my dignity.

Later I was removed from the investigation. I realised then that the time had come to defend myself publicly.

To achieve this, I immediately asked an early retirement, in order to regain the fullness of my freedom of expression.

This book has yet another major objective. That of contributing to the discovery of material truth so that justice is done in an investigation known as "The Maddie Case". These are the fundamental values to which I subscribed by imperative of conscience,..

 
 
 
Page 26

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...conviction and discipline regarding the institution to which I was proud to belong. My retirement will not extinguish these values, they'll go on being present in my life.

This book does not question the work of my colleagues in the police or compromise the ongoing investigation. It is my profound understanding that revealing all the facts, in this type of work, could jeopardise future operations, critical for the discovery of the truth. However, readers will discover data that they ignore, interpretations of facts - always in the light of law - and, of course, relevant questions.

A criminal investigation compromises only with the search for material truth.

It should not be concerned about political correctness. (pp. 11-12) (…)

Many things were told so far - truths and lies - and there was, apart from the duty to provide information, disinformation campaigns aimed at discrediting the criminal investigation in development and those who were responsible for it. For me the investigation ceased to exist on October 2, 2007, when it appeared to have outweighed a new English ultimatum on the day of the summit on the Lisbon Treaty, so nothing surprised me more. The previous day I had attended an nth media spectacle, the ultimate forcing to the thesis of the kidnapping with the disclosure by the McCann family of a sketch of a suspected abductor. Nothing surprises me anymore.

- Do not pay attention. It's carnival.

We continued our convenient conversation, but I felt that my world had like collapsed for good.

After hanging up, I spotted again the almond trees, planted in the hard Algarvian ground, a soil that could have influenced the corpse concealment strategy and, I thought, wouldn't God have dashed in making them bloom in winter ? (p.16) (...)

An investigation destined for shelving.

I have a feeling that with this statement, the national director intends to prepare the public opinion for the inevitable, i.e for the end of the investigation and the shelving of the case. That seemed to be the strategy adopted on October 2 2007, which was consolidated with the execution of tasks to fulfil the calendar, a bit "for the English see". I feared immediately for the present investigation to be questioned...

 
 
 
Page 27

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...so as to facilitate a possible shelving. This investigation had come to undermine the image of the PJ, its inspectors and Portugal, and that's why perhaps it had to be discontinued.

The constitution of Kate Healy and Gerald McCann, Madeleine's parents, as “arguidos" should have marked a turnaround in the relationship among the police forces and the couple. If, on the Portuguese police side, the break occurred, it seems that the same cannot be said of the English police. There was an agreement between the two police forces to move forward in an investigation that was seriously considering the possibility that the child died in the apartment, but suddenly the English police veered without consistent technical explanation - as we shall see further. We have always found it odd the way the couple were treated, even after they got their arguido status, and their eventual access to police information.

I see the mentally investigation, the memories gush cascaded.

I think mainly of this child about to be 4 years old, who all of a sudden was denied the right to existence, to become a woman, to a life of happiness and potential success in the company of her family and her friends, that was abruptly lost. Nothing makes sense. It seems that smothering the facts by decreasing the strength of any clue is being in preparation, forgetting the rights of this child and of others too. But who wants such an outcome ? Who demanded my removal from the operational coordination of the investigation ? Who wants to end the status of the McCanns and Murat as assisted witnesses ? Those who insist on the thesis of the kidnapping ? Those who claimed, and later I will say who they are, that people were arrested for much less in England ? Or those who persist in lying, forgetting the search for the material truth ? The possible shelving of the investigation and the end of the searches certainly favour someone.

After leaving Portimão, October 2, 2007, I decided to forget this case. It was perhaps better, given the powers that seemed to be involved.

If the authorities of the native country of the child are unwilling to know what happened to her, feeding the thesis of the kidnapping, why should I be concerned ? This is not the inopportune (or induced by the journalist) remark of a police director (24) that will erase the existing evidence (it was not the intent as well), our work is set in the stone of the autos. Would those be destroyed in order to erase what has been done, even then, we still have our memories and the memories of those who have carried out with us at arm's length the arduous task of trying to find the material truth ( pp.19-20) (…)  

 
 
 
Page 28

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Yes, a child has died. And I do not say it by value judgment, but by deduction based on the collection of information, hints and proven facts contained in the autos. (p.21) (...)

The caution of a decision

In Portimao I meet Chief Inspector Tavares de Almeida, who was part of the team which I coordinated.

We have known each other since we entered the PJ. The words of the national director worry him, he speaks of an investigation request, already filed with the national director of the PJ. He says the investigation of our work will restore the truth.

During the five months investigation, we heard a little of everything , but we have done our job.

We remember what we have done, the efforts and, honestly, we are not sure that others could have done better. This is not self-sufficiency, it is confidence in the rigour of the work of all police officers involved.

Look ! These people (18), do they know how to sum things up ? How can one speak of precipitation when the McCann became assisted witnesses four months after the facts ? Do not they know the principle of non-self-incrimination ?

He was referring to the legal prohibition to take the testimony of a person as a witness to the point where that person might let know facts that would eventually incriminate them. In other words, when someone is about to make statements on a specific case and when, at some point, it appears that this person might be involved or responsible for the practice of an unlawful act, this person has to be made "arguido(a)". So are preserved the rights and duties of citizens. Curiously, and contrary to what we see very often in the press, especially in the English media, the arguido status protects the (by lawyer) assisted witnesses, since they can keep silent and thus avoid making false statements - as in the case of a simple witness.

I agree with you. If errors were made in this investigation, the delay in changing the status of the McCanns is one of them. There was too much politics and not enough police.

Well, I wouldn't go that far. The error was to treat the couple "with tweezers". Remember how very soon we saw that many things did not fit and that the McCanns were entitled to privileges. That is not normal ! (p.23)

 
Note 18

One could imagine that GA is referring to the unfortunate words (the British police was  following the MC instead of maintaining a critical distance) that motivated, matter of diplomacy, his dismissal of the case by the national director of the PJ, Alípio Ribeiro, but no, he evokes the suggestion of a precipitate 'arguido' status made by the latter to the journalist of the daily Público on 02/02/2008) i.e 4 months later.

 
 
 
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Maybe the national director thinks that the McCanns left the Algarve because of the arguido status.

They stayed in the Algarve as long as the abduction thesis was talked about... When this thesis was questioned , they immediately started talking about returning to England.

Hence we can conclude that the arguido status was only a pretext to abandon the country.

You know, there are British journalists who believed that Portugal was a country of the third world ... I did not agree and I have not changed my mind, however only in countries of the third world the head of a ongoing criminal investigation is removed whereas he was not implicated by the investigation that he led.

There is much talk of governmentalization of justice ... we forget how influence can affect any criminal investigation can be influenced...

- It's easy ... Trustful police officers are made responsible for the investigation... Then, if things go wrong, the responsible ones are replaced ...

I don't think it was the fundamental reason, but ...

There are always valid and legal elements ... Finally. The only obstacle to the management of the investigation, almost political ... are the senior leaders of the police forces.

They must confront bad situations and contrary to the interests of the investigation. They may not agree with everything on the sole purpose of staying on to power ...

My friend ... People do not direct the police forces for personal interest ... They lead in the pursuit of the public interest. This is the only way to understand the role of the police in a democratic State of law.

-- But think for a while ! We can get to the point where only officers agreed by the arguidos will be in charge of some investigations ... It could be a question of 'modernity ' .

Fraud or breach of trust ?

During a relaxation moment in one of these meetings (27), I would have committed a gaffe or, who knows, been inconvenient and undiplomatic. Concerned with the possibility that the McCann couple might be, in one way or another, involved in the disappearance of their daughter, and as I reckoned the types of crimes that could be imputed to them, a fact came to my mind. Were the responsibility of McCann actually confirmed, then the crime of fraud or breach of trust concerning the fund created to search for Madeleine,...

 
 
 
Page 30

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... a fund that held more than 2 million pounds, would follow. The debate was open and, in fact, the assumptions pointed to the aggravated fraud or breach of trust crimes, but it did not belong to Portugal to investigate and judge such a crime. It belonged to the UK, as the fund was registered there. Our English colleagues became then aware of a harsh reality: the strong possibility of a crime to be investigated in their country, having the McCanns as possible suspects, a prospect that did not seem to please them. I noticed the sudden pallor that invaded their faces. (p.193) (…)

A disappearance , a window and a dead body

Reached this point, it is important to make a deductive synthesis of this case. In other words, reject what is false ; discard what you cannot prove for lack of sufficient evidence ; indicate as valid and established what was proven .

So :

1. The thesis of the abduction has been defended by Maddie 's parents since the first hour;

2. Within the group, only the parents claim to have seen open the window in the missing child's bedroom ; most ( travelling companions ) cannot reliably testify on this point, as they ran towards the apartment only after Kate McCann launched the alarm.

3. The only independent statement mentioning the open window and shutters was made by one of the Ocean Club nannies, Amy, who arrived at 22:20/30, pretty after the alert, turning hence her statement of no use for the crime time topic.

4. All statements and testimonies reveal numerous inaccuracies, incongruities and contradictions - some could even be described as false testimony. In particular the key-testimony for the abduction thesis, that of Jane Tanner, loses all credibility due to constant evolution which makes it ambiguous and disqualified .

6. There is a unlocated body, an ascertainment confirmed by the English EVR (Enhanced Victim Recovery) and CSI (Crime Scene Investigation) dogs and corroborated by laboratory's preliminary reports (pp.219-220)."

24. The defendant Gonçalo Amaral concluded his book "Maddie - A Verdade da Mentira" as follows :

" For me and for the inspectors who worked on this case until October 2007, the investigation findings include :

 
 
 
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1) The minor Madeleine McCann died in the apartment 5A of Vila da Luz, Ocean Club, on the evening of 3 May 2007;

2) There has been a simulation of kidnapping ;

3) Kate Healy and Gerald McCann are suspected of involvement in the concealment of their daughter's body;

4) Death could have occurred as a result of a tragic accident.

5) There are clues of neglect in the protection and safety of children ( pp.220-221 )."

25. The book "Maddie - A Verdade da Mentira" was launched on 24/07/2008 in El Corte Inglês Shopping Centre in Lisbon. 

26. On the launch day (24/07/2008), the book was also sold with the newspaper CdM. 

27. The book Maddie , a Verdade da Mentira had the following editions in Portugal : 1st edition in July 2008, 30.000 printed copies ; 2nd in July 2008, 10.000 printed copies ; 3rd in July 2008, 10.000 printed copies ; 4th in July 2008, 30.000 printed copies ; 5th in August 2008, 25.000 printed copies ; 6th in August 2008, 10.000 printed copies ; 7th in August 2008, 15.000 printed copies ; 8th in August 2008, 10.000 printed copies ; 9th in August 2008, 10.000 printed copies ; 10th in August 08, 10.000 printed copies ; 11th in August 08, 10.000 printed copies ; 12th in 2008 10.000 printed copies.

28. The book was published through other editors in the following countries : Spain, September 2008, with the possible trading in Spanish in South American Spanish speaking countries ; Denmark, November 2008, with possible commercialisation in other Nordic countries ; Italy , December 2008, with the commercialisation in Italian for all the world ; Holland, April 2009, with commercialisation in Dutch for all the world ; Germany, June 2009 with commercialisation in Austria and Switzerland.

29. Within the scope of the injunction attached there were only around 7.000 copies of the book delivered to the applicants legal representative

 
 
 
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30. Copies of an English and Portuguese version circulate in the internet without the authorisation of Guerra & Paz, Editores SA.

31. The cover price of the book "Maddie - A Verdade da Mentira" in Portugal was determined by the defendant Guerra & Paz, Editores SA on the amount of 13.33 € VAT included (n° 2).

32. The sale of the books was partly on consignment and another part subject to right of return for reasons such as faults, use or not being sold (n° 23).

33. The defendant Gonçalo Amaral received the following amounts from the sale of the book: 2008 and 2009, the amount of € 342.111,86 (n°s 3 and 4).

34. The defendant, Valentim de Carvalho-Filmes e Audiovisuais SA is a commercial society that creates, develops, produces and promotes the exhibition and broadcast of cinematographic and audiovisual works.

35. On March 7 2008, the defendant Gonçalo Amaral and the defendant Valentim de Carvalho-Filmes e Audiovisuais SA signed a written agreement (pp. 282-283) designated  "option of rights – deal demo” through which the defendant GA gave up the exclusive rights of film adaptation (documentary and fiction) of a book about the investigation of the disappearance in Praia da Luz. 

36. On March 11 2008, the defendant Gonçalo Amaral and the defendant Valentim de Carvalho-Filmes e Audiovisuais SA signed a written agreement (pp. 284-288) , designated “transfer of rights – option contract” through which the defendant Gonçalo Amaral gave up to the defendant Valentim de Carvalho-Filmes e Audiovisuais SA for 2 years the exclusive option rights to adapt the book into documentary and/or fiction that may have the format of a film for cinema or a TV movie.

37. Clause 2 of this agreement states the following: By the transfer of these exclusive right of option, Valentim de Carvalho-Filmes e Audiovisuais SA compromises to pay the author the gross sum of 25.000, subject to legal fees and added VAT.

38. Clause 4 of this agreement states the following : 1) Concerning the adaptation of the book into documentary, the author  commits himself to participate as a narrator, transferring all image and sound rights. 2) For that participation and transfer of all...

 
 
 
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… the patrimonial content of author rights to Valentim de Carvalho-Filmes e Audiovisuais SA the author will receive the gross sum of 15.000 euros, subject to legal fees. 3) For the transfer of rights mentioned in 2) the author will receive 10% of all receipts national or international receipts for the trading of the documentary (in all platforms and supports invented or yet to be invented) after deduction of production costs.

39. On 6/06/2008, the defendant Valentim de Carvalho-Filmes e Audiovisuais SA agreed with Valentim de Carvalho-Multimedia SA to transfer to the latest all trading, distribution and exhibition and broadcast of a group of cinematographic and audiovisual works (film, mini-series, documentaries) that the latter intends to produce within 5 years. (n° 30)

40. The defendant Valentim de Carvalho-Filmes e Audiovisuais SA produced the documentary Maddie, The Truth of the Lie, directed by Carlos Coelho da Silva, which is an adaptation of the book written by the defendant Gonçalo Amaral. This documentary, in DVD format, is appended to the files.

41.At the beginning of the documentary, the defendant Gonçalo Amaral states the following:

My name is Gonçalo Amaral and I have been an inspector for the Judiciary Police for 27 years. I co-ordinated the investigation into the disappearance of Madeleine McCann on the 3rd of May 2007. During the next 50 minutes I will prove that the child was not abducted and that she died in the holiday apartment in Praia da Luz. Discover all the truth about what happened that day. A death that many want to cover up. 

42. At the end of the documentary, the defendant Gonçalo Amaral states the following:

What I know tells me that Madeleine McCann died in apartment 5A on the 3rd of May 2007. I am certain that this truth one day will be ascertained. The investigation was brutally interrupted and there was a hasty political archival. Some are hiding the truth but, sooner or later, the varnish will crack and revelations will surface. Only then will there be justice for Madeleine McCann. 

43. The defendant, Valentim de Carvalho-Filmes e Audiovisuais SA concludes the documentary with this statement :

The mystery remains, the former inspector believes that one day the truth will be known. For now, we are aware only that on the 3rd May of 2007, Madeleine McCann disappeared in Praia da Luz. She was 3 years old and she was a happy child. 

 
 
 
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44. In the sequence of deliberations on the October 27, 2008, it was decided to increase the share capital of the defendant Valentim de Carvalho-Filmes e Audiovisuais SA, an increase that was registered on September 28, 2009, the capital of the company being held in the proportion of 60% by Estudios-Valentim de Carvalho-Gravações e Audiovisuais SA and 40% by the Fundo de Investimento para o Cinema e Audiovisual. (n° 29)

45. On April 13, 2009 and May 12, 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 this statement :

The following program is a documentary based on the book by Gonçalo Amaral, former PJ Inspector who investigated the disappearance of Madeleine McCann in the Algarve. His version of events is denied by Maddie’s parents who continue to insist that it was an abduction.

The criminal investigation carried out by the Portuguese authorities ended with the shelving of the files, a decision contested by Gonçalo Amaral.

Rather than finding those responsible, a task for the justice system, the broadcast of this documentary aims at shedding some light and provide facts that might help understanding a case that has remained a mystery for almost two years.

47. At least two million and two hundred thousand people watched the program broadcast by TVI-Televisão Independente SA on 13.04.2009 (n° 10).

48. The defendant Goncalo Amaral gave to the newspaper CdM an interview, conducted by the journalists Eduardo Damaso and Henrique Machado and published on the July 24 2008. Its contents is totally reproduced and announced on the front page, having been attributed to GA in particular the following statements :

CdM : As the case investigator, what is your thesis?

GA : The little girl died in the apartment. Everything is in the book, which is faithful to the investigation until September (2007). It reflects the understanding of the Portuguese and English police forces and of the Public Ministry. For all of us, until then, the concealment of the cadaver, the simulation of abduction and the exposure or abandonment were proved.

CdM : What led you to indict the McCanns over all of those crimes?

 
 
 
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GA : It all started with the parents' pressure to an abduction theory. And the abduction is based on two facts: one is Jane Tanner's testimony that says she saw a man passing in front of the apartment, carrying a child (on his arms); the other is the bedroom window, which, according to Kate, was open when it should have been closed. It was proved that none of that happened.

CdM : How did you prove that ?

GA : Jane Tanner is not credible: she identifies and recognises different people. She starts with Murat, then someone else is mentioned, according to the drawing done by a witness, and she says that is that person, somebody completely different from Robert Murat.

CdM : Did Jane Tanner's testimony point towards the abduction thesis ?

GA : In order to follow that direction, it would have been necessary to give her credit: there was no other abduction clue. And the window of the bedroom where Maddie and her siblings slept is a vital issue. It leads to simulation. In other words, was it open or not when Jane says she saw the man carrying the child? The little girl’s mother, Kate, is the only person that mentions the open window.

CdM : Does this deconstruct the abduction thesis ?

GA : There lies the solution. The door closed or not is a strong clue for simulation. And why does one simulate abduction, rather than simply saying that the child has disappeared? She could have opened the door and left…

CdM : Do Kate’s fingerprints reinforce the simulation theory?

GA : They are the only fingerprints on the window. And in a position of opening the window.(…)

CdM : What do you think happened to the body?

GA : Everything indicated that the body, after having been at a certain location, was moved into another location by car, some twenty days later. With the residues that were found inside the car, the little girl had to have been transported inside it.

CdM : How can you affirm that?

GA : Due to the type of fluid, we policemen, experts, say that the cadaver was frozen or preserved in the cold and when placed into the car boot, with the heat there was then, part of the ice melted. On a curb, for example, something fell on the boot's right side, above the wheel. It may be said that this is speculation, but it's the only way to explain what happened there.  

 
 
 
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CdM : If the body was hidden in the beach area first, was it always out of reach for the searches?

GA : The beach was searched at a time when it is not known whether the body was still there. Dogs were used, but sniffer dogs have limitations, like the salted water for example. Later on, it might have been removed. 

49. The defendant Gonçalo Amaral issued the above mentioned affirmations. (n° 1)

50. The defendant Gonçalo Amaral gave interviews to the defendant TVI-Televisão Independente SA on the 16.05. and the 27.05.2009.

51. By the end of April 2009, the documentary went on sale on DVD with the title "Madeleine the Truth of The Lie” - A Powerful Documentary based on the best seller “Maddie - A Verdade da Mentira” by Gonçalo Amaral. 

52. The above mentioned DVD was edited and the edited copies were traded by Valentim de Carvalho-Filmes e Audiovisuais SA through agreement with Presselivre-Imprensa Livre SA. (n° 8)

53. 75.000 copies of the DVD were distributed for sale.

54. 63.369 copies of the DVD were not sold, having subsequently been destroyed. (n° 18)

55. On the video cover the word “confidential” is written in red. 

56. The DVD was sold by Presselivre-Imprensa Livre SA as an insert with the newspaper CdM owned by the same company, at the price of € 6,95 (six euros and ninety five cents, VAT included). (n° 6)

57. To date, the documentary was only once reproduced to be edited, published and commercialised in Portugal in video format, DVD referred to in point 42. (n° 31)

58. Reproduction and editing of the video documentary format was authorised by Valentim de Carvalho-Filmes e Audiovisuais SA  to Presselivre-Imprensa Livre SA , which owns the newspaper CdM, according to the agreement between both established. (n° 32)

59. Under which (contract), the DVD, its cover and packaging would be, and were, made ​​by account, order and under the responsibility of Presselivre-Imprensa Livre SA, to be distributed and commercialised jointly with the newspaper CdM. (n° 33)

 
 
 
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60. And the whole process of registration and classification of the video (DVD) edition of the documentary with the IGAC (General Inspection of Cultural Activities) would be, and it was, developed by Valentim de Carvalho-Filmes e Audiovisuais SA, being Presselivre-Imprensa Livre SA that would support the costs, and it did. (n° 34)

61. The DVD of the documentary was distributed for sale together with the distribution for sale of the newspaper CdM. (n° 35)

62. The defendant Gonçalo Amaral earned by selling the DVD, in 2008, the amount of €40.000. (n° 7)

63. The documentary was reproduced, including subtitled in English by others who spread it on the Web without the consent and against the will of the defendant Valentim de Carvalho-Filmes e Audiovisuais SA. (n° 36)

64. This illicit diffusion undermines not only the rights held by the defendant Valentim de Carvalho-Filmes e Audiovisuais SA on the documentary, but also its commercial exploitation, as any citizen can access the documentary with just one "click". (n° 37)

65. The Republic Prosecutor Office in Portimão determined the creation of a digital copy of the investigation process, with the exception of parts subject to absolute secrecy, and its delivery, upon request, to several people, including journalists, which occurred. 

66. The content of such a digital copy was made public, including through the Web, having been publicly and universally read, commented and discussed. 

67. The claimants Kate and Gerald McCann have alerted the press about the disappearance of their daughter. 

68. The claimants Kate and Gerald McCann gave an interview to the North-American TV program “Oprah" hosted by Oprah Winfrey, revealing the existence of new witnesses, reconstructions (19) and e-fits. 

69. The Oprah interview was worldly broadcast by signals available through satellite and cable networks.

70. This interview for the Oprah program was broadcast in Portugal by the (TV Private Channel) SIC, on the 9.05 and 12.05.2009. 

71. The claimants Kate and Gerald McCann, in collaboration with the British television station Channel 4, made a documentary about the disappearance of their daughter, entitled Still missing Madeleine, lasting 60'. 

 
Note 19

"Reconstituições", in the original document, is here translated "reconstructions", since this is what is meant.  In Inquisitorial Justice Systems a reconstitution aims to recreate an event with the proper protagonists, in an attempt for the police forces to understand what happened. It is quite different in Adversary Justice Systems where a reconstruction is the re-enacting of an event with actors and in front of cameras in order to jog the memories of the public. 

 
 
 
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72. On 15.04.2009, the defendant TVI-Televisão Independente SA signed a license preliminary agreement for broadcasting, exclusively in Portugal, the documentary Still Missing Madeleine for 35,000 €. 

73. The claimants Kate and Gerald McCann asked that the license for broadcasting the documentary Still Missing Madeleine would not be attributed to the defendant TVI-Televisão Independente SA.

74. The documentary Still Missing Madeleine, translated Maddie, Two Years of Anguish, was broadcast by (the TV Channel) SIC on 12.05.2009.

75. On 17.10.2007, Clarence Mitchell, spokesman for KMC and GMC said they were realistic enough to admit that their daughter would probably be dead. 

76. There was a huge public interest in Portugal and throughout the world, about the events surrounding the disappearance of Madeleine McCann, the investigations carried out to find her and to determine what in fact happened, their evolution and vicissitudes, among which the constitution of the claimants Kate and Gerald McCann as suspects in the investigation process and the removal of the defendant Gonçalo Amaral from investigations that were developed under his coordination. 

77. The claimants Kate and Gerald McCann hired, through Madeleine's Fund, PR firms and spokesmen. 

78. The so-called Maddie case has been deeply treated in the Portuguese society and in foreign countries, either by media organs or in books, like the works of Paulo Pereira Cristovão, Manuel Catarino and Hernani Carvalho. (n° 24)

79. The so-called Maddie case was commented by Dr. Francisco Moita Flores, former Inspector, writer, and criminologist, as a columnist in various media.  (n° 25)

80. The facts related to the criminal investigation of Madeleine McCann's disappearance that the defendant Gonçalo Amaral refers to in the book, in an interview with the newspaper CdM and in the documentary are mostly facts that occurred and are documented in this investigation.  (n° 27 and 28)

 
 
 
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81. As a result of the defendant Gonçalo Amaral's statements in the book, the documentary and interview with the CdM, the claimants Kate and Gerald McCann felt anger, despair, anguish, worry, and were suffering insomnia and lack of appetite (n°13)

82. The same claimants feel unease because they are considered by people who believe in Gonçalo Amaral's thesis about the disappearance of Madeleine McCann, as responsible for the concealment of the body and as authors of the simulation of her abduction.  (n°14)

83. The claimants Kate and Gerald McCann feel, with deep concern, the need to keep their young children far from the thesis referred to above.  (n°15)
84. Sean and Amelie McCann entered the school in August 2010 without knowledge of the defendant's thesis referred to above.  (n°17) (20)

Unproven Facts (the proven facts started on p.19)

a) that the cover price of the book "Maddie-The Truth of the Lie" in Portugal is of € 13,80, VAT included,
b) that the defendant Gonçalo Amaral had earned from the sale of the Portuguese edition of the book 'Maddie-The Truth of the Lie' an amount not less than 621.000 €,
c) that the defendant Gonçalo Amaral had earned from the sale of editions of the book in foreign languages an amount not less than 498,750 €,
d) that the book had been sold in Brazil by the defendant Guerra & Paz, Editores, SA,
e) that the DVD has a cover price of 6 €,
f) that the defendant Gonçalo Amaral had earned by selling the DVD an amount not less than 112.500 €
g) that the DVD had been edited and the edited copies had been sold by the defendant Valentim de Carvalho-Filmes, Audiovisual, SA,
h) that the defendant Valentim de Carvalho-Filmes, Audiovisual, SA had already put the DVD available in English version, for immediate delivery through order on the web,

 
Note 20

All those n° refer to the inquiry data basis. 

 
 
 
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i) that because of the defendant Gonçalo Amaral's statements in the book, the documentary and the interview with the CdM, the Judicial Police had ceased to collect information and to investigate the disappearance of Madeleine McCann,

j) that because of the defendant Gonçalo Amaral's statements in the book, the documentary and the interview with the 
CdM the claimants Kate and Gerald McCann find themselves completely destroyed, from a point of vie moral, social, ethical, sentimental, family, far beyond the pain that the absence of his daughter causes them,

k) that in particular because of the defendant Gonçalo Amaral's statements in the book, the documentary and the interview with the 
CdM the claimant Kate McCann finds herself immersed in a serious and deep depression, which has already made her declare publicly I'd like to be in a coma, to relieve pain,

l ) that the defendant Gonçalo Amaral had been retired of the Judicial Police from 1.6.2008,

m) that the criminal investigation had been reopened by the emergence of new evidence,

n) that the attention of the media and people in general had decreased with the publication of the defendant Gonçalo Amaral's book .

2.2. The appellants complete their allegations with the following conclusions :

a. In order to subsume the fact in the special unlawfulness forecast of article 484° of the CC, enough is the confirmed or spread fact being susceptible, given the circumstances of the case, to shake the prestige or the good reputation that a person enjoys in their social environment.

b. A book and other communicational substitutes that don't essentially report any fact, evidence or clue belonging to the criminal investigation they allude to, since those were considered inexistent by the shelving report, are susceptible to shake the prestige that a person enjoys or the good reputation of this person in the social environment.

c. It shakes also the honour, the good name and the image of any innocent person, and already cleared before through the filing dispatch of a criminal investigation (the conclusion of which is that there is no element of proof nor evidence that the person committed any crime), a book, a documentary and an interview, extravagant in relation to the criminal investigation, and not even being part of those communicational supports the mention of that filing dispatch, but instead exactly the contrary of what this dispatch is postulating.
 
 
 
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d. And the honour, the good name and the image of any innocent and cleared citizen are even more shaken by communication media that intend and are able to disrespect and weaken the judgement reached by State magistrates, the sole holders of the penal action, (the media) representing the target citizen, in the eyes of the remaining citizens, as suspect of the practice of crime, through the use of concrete circumstances advertisers that proclaim the "truth of the lie", "unique revelations" and "confidences", and that will prove the crimes that target the innocent citizen, all that with the confessed intention to inculcate third parties with the conviction that a child died and that her parents are involved in the occultation of her cadaver, simulating abduction and cheating the justice and the common citizen.

e. The right of free expression isn't absolute and must respect the right to honour and good name. When that expression, even of a true fact, is abusive and therefore unlawful, it can be subject to legal sanction.

f. The right-duty to express one's thought must be exercised with a clear civic criterion, of respect for man by man, and the information must be guided by rigorous ethical and moral rules, appropriated to a natural civic coexistence.

g. The abusive and harmful acts of arguable expression of a retired public agent do not fit in the constitutional or conventional concept of freedom of expression, in force in any democratic country in the world. They challenge without logical, honest and valid support, a judicial decision, untouched and uttered in a process that this same agent investigated, through a comportment contrary to his own professional statute, to the social peace and to third-party personality rights, acts exclusively for financial and social gain and to create a popular phenomenon, the repercussion of which benefits the injured parties and entails substantial and indelible damage to the injured, even because such conduct is prohibited not only in relation to the absolute rights of the concerned ones, but also in view of the duties to which a retired public agent remains bound.

h. In the case of the minutes, in relation to the never compressed personality rights of the concerned ones, a possible overvaluation through the abusive exercise of a legal good and not absolute constitutional interest – freedom of expression, freedom of information, freedom of the press – is not only unacceptable, but repels the human being, because it is an illegitimate, illegal, abusive and anti-juridical exercise of rights, because it constitutes a degrading and inhuman treatment...

 
 
 
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... and because it con-substantiates an unconstitutional conduct, violating international treaties on humanitarian, immoral and unethical law.

i. The rights relied on by the applicants and already acknowledged by three of the judgements uttered before in first instance, fit in and are justified by the fundamental principle of human dignity, until now characterising the politico-sociological profile of the Portuguese State, with expression in the regulation of the tutelage of the right to good name and reputation, in the tutelage of the protection of one's innocence, in effective judicial protection and in the tutelage of the right to personal life and integrity.

j. Freedom of expression, freedom of the press and social communication, in a society of the rule of law like the Portuguese one, doesn't contain in itself an especially powerful and incompressible guarantee and its regime does not overlap with the personality rights called in the minutes by the applicants. They must therefore yield to them in order to insure greater constitutional objectives.

k. Freedom of expression and social communication, representing a de facto power, forces the State, in these circumstances, to secure, namely through its courts of law, a system of effective guarantees of the fundamental rights of the citizen, in front of such a power, in compliance with the fundamental principle of the democratic State of Law, which is to respect and ensure the effective implementation of the fundamental rights and liberties of the citizens. 

l. In Portugal, regarding the CRP, the UDHR, the European Convention on Human Rights and the Convention on the Rights of the Child, it is not allowed to write, to spread by all means and to comment with every possible nuance, a thesis that criminally charges innocent citizens and never even judicially accused of the crimes that it contains. It is not up to the State and the Courts of Law to protect whoever behaves this way, but, yes, to protect the citizens of such aggressions.  

m. Exactly because they are not only absolutely innocent, but also because they have the right to benefit from the principle of innocence presumption of innocence by acting and behaving like any other citizen who has not been made arguido in a criminal process, everything that the parents of a missing child do by itself, within legality, for getting their daughter back or representing her or knowing what happened to her, must be welcomed by Portugal, not like a voluntary compression of the personality rights of these parents,...

 
 
 
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… but like an activity protected by national and international rights, the assertion and diffusion of the thesis proclaimed urbi et orbi (21) by the respondents not even fitting in the scope of possible criticism of this conduct.

n. The judicial agreement contrary to the above findings, reflected in the appealed judgement, by promoting and making possible in the specific case the re-publication of the book or of the film, and the acquittal for the respondents to pay proportionally and adequately the indelible detriments they have caused to the appellants by virtue of their illegal acts and communication media, according to, by the way, what was previously decided and stated by three of the first instance's judgements uttered in the minutes, is :

On one hand, struck by a vice of erroneous interpretation and application to the case at stake of the provisions of articles 12° of the UDHR, 6°, 8° and 10° of the European Convention on Human Rights, 5°, 6°, 9°, 11°, 13°, 14°, 16°, 17° and 34°to 37° of the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations in November 20 1989, ratified by Portugal in September 21 1990, of the articles 1°, 2°, 8°, 20°, 26°, 32°, 37°, 38° and 272° of the CRP (Constitution of the Portuguese Republic), 70°, 80°, 81°, 335°, 2°, 483° and 484° of the CC (Civil Code), 371° of the CPP, 74° of the D.L (law decree) 498/72 of December 9, and the 3° of EDTEFP (Disciplinary Statute of Public Function Agents), dedicated by D.L. 234/84 of January 16 and, in the subsequent version still applicable to the minutes, in law 58/2008 of September 9.

On the other hand, struck by the material unconstitutionality by virtue of the normative understanding which the appealed decision gave to the legal norms set out in articles 1°, 2°, 8°, 16°-1, 2, 18°-2, 20°, 26°-1, 32°-2 and 37°-4 of the CRP :

A) when interpreted and applied to the present case, in the sense of allowing the publication of the book or the film, and the acquittal of the respondents to pay appropriately and proportionately the indelible damages that they caused to the appellants by virtue of their action, and abusive and illicit communication media.

and

B) when it is more certain that this interpretation and application of said constitutional precepts, is shown incompatible with the inalienable principles of the dignity of the human person, of the general protection of personality and of the right to good name and reputation, and also under the supervision of effective jurisdiction and of the presumption of innocence.

 
Note 21

”Orbe” in the original, but this is a dative case : urbi (to the city) and orbi (to the world).

 
 
 
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Terms in which, and in the more of Law that
Your Excellencies surely supply, always in view of the replacement of the very righteous sentence now revoked by virtue of the TRL's judgement (22),

Your Excellencies must fully adjudicate the recourse of Ordinary Review filed by the appellants ;
More, that decision should, in consequence, be fully replaced by another that, applying the Law to Facts, at least

1) Declares the unlawfulness of the facts attributable to the respondents and their guilt in the performance of the same;

2) Recognizes that the respondent companies constituted vehicles of the wrongdoing committed by the respondent Gonçalo Amaral, for which reason they are liable for the measures that under article 70-2 of the CC must be ordered in the case, according to criteria of adequacy and proportionality, precisely to mitigate the effects of this tort ;

3) Recognizes that such measures must consist in the prohibition of sale and order of collecting the books, addressed to Gonçalo Amaral and Guerra & Paz, Editores SA for delivery to the appellants;

4) Decrees prohibiting the execution of new editions of the book or DVD. As well as the transfer of publishing rights and author rights. Such injunction should be directed against the respondents Gonçalo Amaral, Guerra & Paz, Editores SA and Valentim de Carvalho-Filmes e Audiovisuais SA  that is, this last one, regarding the first, the holder of the audiovisual adaptation rights of the book;

5) In accordance with the provisions of article 8290-A1 of the CC, establishes an appropriate compulsory sanction for benefits actually not fungible, considering proportional an amount never less than € 50.000 (fifty thousand euros) for each infringement of this order
(article 829-A2 of the CC);

6) Compensates for the proven damage that have been verified in the legal spheres of the appellants and that are the direct and necessary cause of the unlawful, guilty and abusive conduct of the respondent Gonçalo Amaral, damage which, once balanced the degree of guilt of the party at fault, the seriousness of the offense, the temporary and social circumstances in which the facts were committed, and, since it is particularly relevant in this specific case, the value of the benefits
accrued by the party with the unlawful act, shall not be compensated with a lower amount of compensation filed in the proceedings by each of the appellants and previously stipulated for them, in that exact measure, by the judgment now revoked by the TRL.

 
Note 22

Tribunal da Relação de Lisboa, Appeal Court http://www.trl.mj.pt/inicio/home.php

 
 
 
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2.3. The respondent Guerra & Paz Editores SA, counter-argued, concluding in the following terms :

A. At stake in the present minutes is the book Maddie, the Truth of the Lie written by the respondent GA and published by the respondent Guerra & Paz, Editores SA. The publishing contract was celebrated on 10/3/2008, the book being published on the 24/7 of the same year.

B. Circulate on the Internet, without the authorization of the respondent, an English version and a Portuguese version of the book at issue in the present case, and a version of the documentary, with English subtitles. As well as a full copy of the criminal process.

C. The action that originated these proceedings and of which the respondent is a party was also brought against TVI-Televisão Independente SA, which was acquitted by the first instance judgment, that has already become res judicata (final judgement) on this point.

D. In other words, the appellants accepted the acquittal in the first instance of the defendant TVI-Televisão Independente SA which had broadcast twice a documentary based on the book written by the respondent Gonçalo Amaral and published by the now respondent Guerra & Paz Editores SA and, consequently, they accepted that such defendant could broadcast the documentary and divulge in some way the thesis of the book.

E. With the exception of paragraph a) of the request formulated in the action, all other paragraphs are addressed to all defendants of the action, including TVI-Televisão Independente SA, therefore the appellants do not care if the defendant TVI-Televisão Independente SA practices the facts that they intended to beware of with the present action, but concerning the respondent and others they do.

F. With the acceptance of the acquittal of the defendant TVI-Televisão Independente SA, the present appeal that seeks to sue the respondents Gonçalo Amaral, Guerra & Paz Editores SA and Valentim de Carvalho-Filmes e Audiovisuais SA, con-substantiates the abuse of rights foreseen in article 334° of the CC and implies the groundlessness of the present appeal.

G. We live in a democratic State of Law, based on pluralism of expression, which guarantees freedom of thought and free disclosure, besides the fact that we must all contribute to the enrichment of culture through the publication of books and documentaries. 

H. As it is undisputed that the appellants have achieved notoriety and fame in Portugal and around the world, it is not possible that they grant interviews to the media, even in the intimacy of their home, when it is favourable, and then forbid the publication of books...

 
 
 
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… or comments, even on publicly known facts, when they feel those might be unfavourable. 

I. Thus the sphere of private life of the claimants, as much through their notoriety as through their option,  can only be considered reduced, especially according to the terms and effects of the contents of Article 80°-2 of the CC

J. The appellants maintain to the same extent the dignity of the human person, the good name and reputation and the presumption of innocence which they had before and after the publication of the book in question.

K. There is a chronology and succession of public and notorious facts that cannot be omitted, that are reflected in the factuality given as proven in the enumeration of the appealed judgement and also in the filing dispatch included therein.

L. Since the disappearance of the child, up to this date, the appellants have publicised their opinion on the facts, though these are still unknown today.

M. As well as the appellants, every citizen has the right to have an opinion on the facts and to publicize it.

N. The rights to freedom of expression and information and the right to freedom of the press and social communication media are enshrined in articles 37° and 38° of the CRP.

O. And further, the right to freedom of expression is enshrined in Articles 19° of the UDHR and 10° of the European Convention on Human Rights.

P. Contrary to the claim of the appellants, various decisions of the ECHR, that can be consulted, have come to condemn the Portuguese Courts of Law for violating the right to freedom of expression and freedom of the press by condemning journalists and other citizens for defamation.

Q. The ECHR considers that the right to freedom of expression is one of the essential foundations of a democratic society.

R. The STJ in Portugal has also delivered judgments that value the right to freedom of expression, to the detriment of other rights.

S. In view of the exposed elements, there can be no doubt that the right to freedom of expression and the right to freedom of the press are fundamental in a democratic State of Law.

 
 
 
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T. As stated, it was the appellants themselves who freely and conscientiously chose to make public facts that besides cannot be considered from private and family life.

U. The request for protective injunctions of the appellants' personality rights petitioned are not suitable for the purpose at stake, besides of being illegal.

V. And could only be applied after detailed analysis to verify, case by case, if they are legal, appropriate and proportionate to the specific case and who are the recipients thereof, which is forbidden to that Court.

W- The present minutes are composed of two different actions with different values. The respondent G&P is part of an action with a value of € 30,000,01, whereby this is the value of the costs paid by the party whose claim is rejected.

X. The uttered judgment must be maintained in its precise terms, at risk of violating, namely, the
Articles 13°, 20°, 37°, 38° and 42° of the CRP

Articles 5°, 158°and 615° of the CFC (sic, likely CPC, Codigo de Processo Civil)

Articles 334° and 335° of the CC

Article 19° of the UDHR

Article 10° of the European Convention on Human Rights

2.4. It can be verified that the divergence found in the decisions of the instances consists essentially in the following :

- the first instance found that the defendant Gonçalo Amaral, for having been responsible for the criminal investigation as a member of the PJ, although, meanwhile, he retired, couldn't enjoy full and complete freedom of expression, since the functions he was in charge of  imposed on him, in particular, the reserve duty, wherefore that freedom having to yield to this duty, his conduct was unlawful in virtue of the art. 484°of the CC.

- the second instance took the view that this argumentation could not be upheld, inasmuch "it would be hardly understandable that a civil servant, even more a retired one, should carry on his silence and reserve duties, thus limiting the exercise of his right to opinion as to the interpretation of facts already made public by the judicial authority and widely discussed, actually largely at the instigation of the protagonists themselves, in national and international media", imposing himself to consider...

 
 
 
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 ... the publication of the book in question as revealing the legitimate exercise of right to opinion.

The appelants, in the conclusion of their claim for review, despite alluding to their claim to have the sentence of the first instance reinstated, did not make any express reference to the question of the alleged reserve duty of the defendant Gonçalo Amaral, to which, according the same judgement, freedom of speech should give in, which constitutes the cornerstone of the entire construction leading to the conclusion that the conduct of that defendant was illicit, by virtue of art.44° of the CC.

That thesis, as we have already seen, was not welcomed by the TRL (Appeal Court). So, what the appelants claim is that, in order to subsume the fact to the special provision of illegality of the aforementioned art. 484°, enough is the affirmed or disclosed fact to be capable, taking into account the circumstances of the case, of undermining the prestige of someone or the good reputation enjoyed by someone in the social environment.

So much more, they add, when innocent and cleared citizens are concerned (via the filing dispatch of the criminal proceedings), who are anyhow entitled to benefit of the principle of innocence presumption.

Furthermore, they claim that free speech, in a society of primacy of law, such as the Portuguese one, does not contain in itself any guarantee particularly powerful and incompressible, its regime not overlapping with the personality rights called by the appellants in the minutes. It should therefore yield to them, with a view to ensuring greater constitutional objectives.

Let's see.
The central question
that must be considered in this present appeal is how to resolve the conflict between the rights of claimants Kate and Gerald McCann, now appellants, to good name and reputation, and the rights of the defendants Gonçalo Amaral, Guerra & Paz Editores SA and Valentim de Carvalho-Filmes e Audiovisuais SA, now respondents, to freedom of expression and information, and to freedom of the press and media.

That question implies the formulation of the following question: must the conduct of the respondents be regarded as unlawful, for besmirching the honour of the appellants ?

 
 
 
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As the outcome of what has been exposed above, freedom of expression and honor constitute two fundamental rights that, given its relevance, deserved a constitutional consecration.

A broad conception of honour is approved, encompassing the various meanings which are legally recognized to this concept : the Constitution safeguards the "good name and reputation" (art. 26°-1), the CC welcomes the "moral personality" (art. 70°-1), "honor or reputation or simple decorum" (art. 79°-3) and the "credit or good name" (art. 484°) ; the CPP protects "honour or consideration" (art. 180° sq).

Thereby, the art. 26°-1 of the CRP welcomes the right to good name and reputation, which, according to Gomes Canotilho and Vital Moreira, in the CRP annotated , Vol. 1, 4th ed., p. 466, consists essentially in the right not to be offended or harmed in one's honour, dignity or social consideration by imputation made by others, as well as the right to defend oneself of this offense and to obtain a relevant reparation.

For its part, the article 37° of the CRP recognizes two sets of rights - the right to expression of thought and the right to information. The right to expression is, straight away, freedom of expression, that is to say the right not to be prevented from expressing oneself and to spread ideas and opinions.

According to those distinguished constitutionalists, op.cit. p. 572, the regime of the right to expression of thought and the right to information is, in the juridical-constitutional perspective, essentially identical. The normative scope of freedom of expression should be as broad as possible to include opinions, ideas, points of view, convictions, criticism, stances, value judgements on any matter or issue (political, economic, gastronomic, astrological questions), and whatever are the purposes (influence of public opinion, commercial objectives) and the criteria of appraisal (truth, justice, beauty, rational, emotional, cognitive, etc.).

Thus, while the aforementioned art. 37° regulates the freedoms and rights of expression and information in general, the art. 38° deals with these rights when exercised through
the press and other mass media.

In this way, freedom of the press is only a qualification of freedom of expression and information intended for the public.

That is why the first shares the entire constitutional regime of the latter.

The honour and freedom of expression are also enshrined in the Universal Declaration of Human Rights (UDHR - art. 12° and 19°, the art. 29°-2 establishing the criterion of...

 
 
 
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... harmonization of the various rights) and in the European Convention on Human Rights
(art.8° and 10°).

Although the STJ has already understood, in particular in the judgements of 30/06/11 and of 1914/16 (in www.dgsi.pt), that the ECHR does not protect, in general, the right to honor, referring it only as possible integral part of the restrictions to freedom of expression mentioned in the quoted art. 10°-2, the jurisprudence of the ECHR considers that from respect for privacy enshrined in article 8° of the ECHR emerges a right to protection of reputation (cf. the following cases : Petrina vs Romania (78060/01), Abeberry vs France (58729/00) and Leempoel SA. ED Cine Revuc vs Belgium (64722/01), cited in the above mentioned Judgement of the Lisbon Appeal Court of 14/02/12, and, more recently, the cases Medipress-Sociedade Jornalística,Ldt. Vs Portugal (55442/12) and Tavares de Almeida Fernandes e Almeida Fernandes vs Portugal (31566/13).

In these last two cases, the decisions of which date, respectively of 30/08/16 and 17/01/17, it was considered that whenever the Court has to rule on a conflict between the two mentioned rights, which are also protected by the Convention, it must take stock of the interests at stake, from the point of view of art. 8° as well as from the point of view of art. 10°, since those two rights deserve, a priori, an equal respect.

It should be noted that, in the civil and legal sphere, the art. 335° of the CC states that the concrete resolution of a conflict of rights with identical value requires its harmonization,
seeking to optimize them so that each one can produce its best effects.

However, since there is a collision of fundamental rights, the conflict can not be solved by the principle of equal treatment. It is necessary to weigh the interests concerned in order to determine which needs more protection in the case at stake.

In the present case we are, clearly, facing rights belonging to the category of personal rights freedoms and guarantees, being then applicable their specific regime, namely the one provided in art. 18° of the CRP, more precisely what is expected in the 2nd paragraph, according to which:

The law may only restrict rights, freedoms and guarantees in cases expressly provided for in the Constitution. The restrictions being limited to what is necessary to safeguard other constitutionally protected rights or interests.

 
 
 
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The mentioned 2nd paragraph thus gave clear constitutional haven to the principle of proportionality, also called principle of prohibition of excess, which, according to Gomes Canotilho and Vital Moreira. op. cit. p. 392-3, is divided into three sub-principles: the principle of adequacy (the restrictive measures of rights, freedoms and guarantees should prove to be an appropriate means for the pursuit of the contemplated purposes, safeguarding other constitutionally protected rights or assets), the principle of liability (such restrictive measures must be required in order to achieve the objectives in view of the fact that the legislator does not have other less restrictive means to achieve the same objective), the principle of fairness or proportionality in the strict sense (disproportionate, excessive measures will not be adopted to achieve the intended objectives).

 

Likewise one can see the Ruling n° 634/93 of the Constitutional Court of 4/11/93.


In the light of the Constitution, freedom of expression and honour have the same legal value, turning impossible any principle of abstract hierarchy among them (Gomes Canotilho, Constitutional Law and Constitutional Theory, Coimbra, 2003, pp. 1225 and 1237).

 

It is therefore appropriate to use the principle of practical concordance or harmonization that obstructs a solution sacrificing a right in relation to the other and forces to the existence of constraints and mutual conditioning, with the aim of reaching a solution of harmony or practical agreement between both (see article 18°-2,3).


However, as it is impossible to reach a solution of harmonization in order to obtain a fair solution to the collision of rights, positive aspects will have to be counterbalanced, followed by a balancing methodology adapted to the specificity of the case (norm of decision in situation, in the words of Gomes Canotilho, op. cit. p. 1237).

 

This is why the conflict resolution cannot fail to take on a concrete nature, exhausting itself in each case it resolves.


In fact, settling the conflict in the abstract would imply a prioritized hierarchy of rights constitutionally inadmissible.


As it is known in modern democratic States of Law, like Portugal, the conflict between freedom of expression and honour is a classic issue.

 
 
 
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Particularly when those involved are public figures and a matter of public interest is involved.


The concrete resolution of the conflict between freedom of expression and honour of public figures, in the European legal context, where we are inserted, takes place under the influence of the European jurisprudential paradigm of human rights.


In this way, the ECHR interpreting and applying the European Convention on Human Rights has defended and developed a doctrine of enhanced protection of freedom of expression, in particular when the person targeted by imputation of facts and formulation of dishonourable value judgments is a public figure, the issue being a question of political or public interest in general.

 

As Francisco Teixeira da Mota points out in "The European Court of Human Rights and Freedom of Expression - the Portuguese Cases", p. 89 : Though the European Convention on Human Rights doesn't add many rights to those already contained in our Portuguese Constitution, its ratification by Portugal is a significant milestone for a number of reasons, among which stands out the fact that Portugal joined a juridico-cultural community which values and upholds human rights and the fact that its citizens have now direct access to international (European) mechanisms of protection of those rights.

 

It has been understood, between us, both at the doctrinal and jurisprudential level, that the ECHR occupies an infra-constitutional position, its application in internal order being therefore dependent on conformity to the precepts of our fundamental law and that has a supra-legal value, so that the internal laws, posterior to a internally received treaty, that contravene the provisions of their orders will not, to that extent, be able to be applied by the courts (Rui Moura Ramos, "The European Convention on Human Rights - Its Position on the Portuguese Legal System" and "Implementation of the European Convention on Human Rights - Some Problems", in Documentation and Comparative Law – BMJ, 1980 and 1983 respectively).


The national judges are, in this way, linked to the European Convention on Human Rights, since, having been ratified and published, it constitutes a national law which as such must be interpreted and applied, in constitutional terms, over domestic law (art. 8° of the CRP).

 

Moreover, under article 16°-2 of the CRP, the constitutional and legal precepts related to the fundamental rights must be interpreted and integrated in accordance with the UDHR.

 
 
 
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As António Henriques Gaspar, current Judge-Counselor President of the STJ refers in The Influence of the European Convention of Human Rights in the Interjurisdictional Dialogue, the National Perspective or the Other Side of the Mirror, intervention in the Colloquium on the occasion of the Commemoration of the 300th anniversary of the validity of the Convention in Portugal - STJ, 10/11/08, published in Revista Julgar, n° 07, p. 39, In spite of the limited terms of direct linking, the decisions of the ECHR, when interpreting the provisions of the Convention, must have a 'specific authority' which is imposed on all States by the so-called "autorité de la chose interprétée" (res interpretata authority) : the ECHR's function is "to clarify, safeguard and develop" the Convention's norms, helping to ensure that States respect the commitments assumed under the Convention entailment.


In such a way that the interpretation by the ECHR of conventional norms must be considered as integrating the Convention itself. The principle of entailment can be found in the wording of articles 1° and 19° which preside over the entire European Convention of Human Rights.

 
 

Thus, national judges, when interpreting and applying the Convention, as first-line conventional judges, must take into account the methodological references and interpretations and the jurisprudence of the ECHR as the proper instrument of conventional regulation.

 
 

It has to be reckoned that, according to the opinion of the national judges assembled for reflection and consultation (cf. Avis n°9, 2006, of the Conseil Consultatif des juges européens, on the function of national judges in the effective application of international and European law), the case-law of the ECHR must be for all judges a reference in the process of elaborating a body of European law.

 
 

On the other hand, on 28/1/03, the Parliamentary Assembly of the Council of Europe(EC) through the Recommendation 1589 (2003) reiterated to the Committee of Ministers, among other measures, the necessity to turn public the data related to the monitoring of the exercise of freedom of expression in member and candidate countries and the necessity for member states to incorporate the ECHR jurisprudence in the field of freedom of expression in their internal legislation and to ensure the appropriate training of the judges.

Nevertheless, as it is obvious, taking into consideration the case-law of the ECHR is not acceptance by imposition, but rather an intellectual imperative, that implies analysis and balancing, from which the outcome may be acceptance but also divergence.

 
 
 
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In fact, the judges judge only according to the Constitution and the law, not having entailment of any kind, except the duty of compliance by lower courts of the decisions proclaimed, on appeal, by higher courts.

Paraphrasing the current Judge Counsellor President of the STJ, op. cit. p.44, The dialogue and the interaction between the European instance and the national instances has to assume, on the part of those, a position of great openness and the assumption of a culture of judicial cosmopolitism.

Which, nevertheless, does not fail to alert to situations in which the national margin of discretion is completely removed by transforming in fact, the ECHR in a fourth instance, contrary to the conventional model of control (op. cit. p. 42).

However, as it is said here (op. cit. p. 50) the international bodies, for their part, must also bear in mind the warning of Judge Jackson of the Supreme Court : We are not final because we are infallible, but we are infallible only because we are final (Note : in English in the text).

Consequently, he concludes (op. cit. p. 50), the interjurisdictional dialogue must be undertaken by national judges with intellectual rigor, without the radicalisms proper to any methodological nationalism.

Anyhow, there are matters that are more permeable to jurisprudential reading of the ECHR, therefore, in these cases, it is more appropriate to take them as reference.

This is the case with the case-law on freedom of expression, built on the interpretation and application of the art. 10° of the European Convention on Human Rights, which offers a host of extremely useful criteria for the national courts, already integrating a European consensus, so that internal decisions can not fail to take this case-law into account.

Such a consensus reveals a doctrine of enhanced protection of freedom of expression, in the terms referred to above, which is considered as super freedom and as one of the most precious rights of man.

However our case law on freedom of expression, in its confrontation with the right to honour, tends in general to uphold the primacy of the latter over the first (cf. inter alia, the judgements of the STJ of 26/4/94, 14/2/02, 7/3/02 and 8/3/07 in www.dgsi.pt).

We acknowledge, indeed, that, while on the ECHR side the solution to the issues related to interference in freedom of expression is found by taking into account its exceptional nature and the central importance of that freedom in a democratic society, ...

 
 
 
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On the national instances' side there is a clear tendency to secondarily favour freedom of expression and to overestimate the right to honour.

This has caused Portugal to be condemned by the ECHR for violation of art. 10° of the European Convention on Human Rights (cf. the cases Lopes Gomes da Silva vs Portugal (2000), Urbino Rodrigues vs Portugal (2005), Roseiro Bento vs Portugal (2005). Almeida Azevedo vs Portugal (2007), Colaço Mestre vs Portugal (2007), Leonel Azevedo vs Portugal (2008), Medipress Sociedade Jornalistica. Lda. Vs Portugal (2016) and Tavares de Almeida Fernandes and Almeida Fernandes vs Portugal (2017)).

We observe, in this respect, that in the cases in which the Portuguese State would be condemned by the ECHR for violation of Convention norms, a request of review can be lodged to the Court that issued the decision to re-examine (cf. Art. 449°-1g of the CPP introduced by Law n° 48/ 2007, of 29/8, and art. 771°-f of the CPC, introduced by D.L n°303/2007 of 24/8 - art. 696°-f of the NCPC-)

Thereby followed the injunctions of the Recommendation R (2000) of January 19 2000 from the Committee of Ministers of the Council of Europe, which constitutes a soft law instrument that called on States to provide for the possibility of reopening internal proceedings when the re-examination is the necessary means to repair the entitlement affected in the cases where violation is stated by the ECHR.

This reflects the growing importance of the case-law of that Court. However, it is clear that national case-law has been operating at a turning point, having for basis and groundwork the pertinence, the dignity and the dimension of freedom of expression, as stated in the STJ's ruling of 7/3/01 (cf. also the STJ's rulings of 7/2/08, 10/7/08, 30/6/11, 28 /6/12, 8/5/13, 21/10/14 and 19/4/16, where the influence of the jurisprudential paradigm of the ECHR is evident).

The first instance judgement accounts for all this. This is why it was reproduced in part in this judgement (cf. the first 39 pages). We assume that there was a correct invocation of the legislation and of the case-law relevant for the purposes of deciding on the central question referred to above and still for reasons of procedural economy, so as not to repeat legal and jurisprudential citations, which, in this way, we consider here as reproduced.


However, that sentence ended up resolving the issue by resorting to the presumption of innocence of the claimants Kate and Gerald McCann and to the reserve duty of the defendant Gonçalo Amaral,...

 
 
 
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... and we disagree with the decision so decided on the basis of the arguments which we shall adduce next.


Before, however, the relevant facts to be taken into account in deciding the question referred to above shall be listed below :

5. The claimant Madeleine McCann has been missing since 3/5/2007, and the office of the Republic Prosecutor for the Portimão district has opened a criminal investigation

6. The dogs of the British police 'Eddie and Keela' have detected human blood and body odours in the Ocean Club apartment 5-A.

7. The dogs Eddie and Keela, from the British police, have detected human blood and cadaver scent in the vehicle rented by the applicants Kate McCann and Gerald McCann after Madeleine's disappearance.

8. The claimants Kate McCann and Gerald McCann were constituted arguidos (formal suspects) in the criminal investigation.

9. In folios 2587-2602 of the criminal investigation, the 10/9/2007, Chief Inspector Tavares de Almeida wrote a report and in particular the following : Given what we could establish, the facts point towards the death of Madeleine McCann during the evening of 3 May 2007, in the apartment 5A of Praia da Luz Ocean Club resort, occupied by the McCann couple and their three children (p. 2599) (...)

Taking into account all that was presented in the minutes, it results that :

A) The minor Madeleine McCann died in apartment 5A of the Ocean Club in Praia da Luz in the evening of May 3, 2007 ;

B) A simulation of abduction took place ;

C) In order to make possible the death of the minor before 22h, a story about checking on the McCann children, as they slept, was invented ;

D) Kate and Gerald McCann are involved in the concealment of the body of their daughter Madeleine McCann ;

E) On this date it seems there is no solid evidence that the death of the minor was not due to a tragic accident;

F) Given what has been confirmed so far, everything indicates that the McCann couple, as self-defence, does not want to deliver immediately and voluntarily the body, existing a high probability...

 
 
 
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 ... that the same was removed from the place where it was originally disposed of. This situation is likely to raise questions about the circumstances in which occurred the death of the minor.

Thus we suggest that autos be delivered to the prosecutor of Lagos aiming :

G) A possible new interrogation of assisted witnesses Kate McCann and Gerald McCann ;

H) Evaluate the adequate measure of constraint to be applied in the case (page 2601).

 

10. In folio 2680 of the criminal investigation , on 10/9/2007, the prosecutor in charge of the investigation issued an order which namely says this:

During the investigation which goes on regarding the disappearance of Madeleine McCann, the proceedings being therefore open either to confirm or to deny that the occurrence of the disappearance is related to the crimes of kidnapping, homicide, exposure or abandonment and concealment of corpse, and in accordance with the established plan, the need was felt to gather information on the actual time of the disappearance, verify the location of each stakeholder – from the McCann couple to the group of friends with whom they were on holiday in tourist apartments in the Praia da Luz Ocean Club, i.e  Michelle Jane Tanner, Russell James O'Brien, David Matthew Oldfield, Rachael Jean Mampilly David Anthony Payne, Fiona Elaine Payne and Diana Webster – when the events occurred and in the moments that followed, and determine the movements of the assisted witnesses, Gerald McCann and Kate Healy, during their stay in Portugal, while also establishing connections between all stakeholders and third parties.

In this sense, and because the following investigation needed is essential for the discovery of truth , especially the analysis of information on telephone exchanges between the McCann couple and their friends, and other phone numbers, which have shown to be related to events of May 3rd 2007 evening, the autos are delivered to the Judge of Criminal Instruction (JCI).

 

11. In folio 3170 of the criminal investigation, on 3/12/2007, the JCI of Portimão issued a decree in which he stated particularly this:

Since the investigation, in these autos, concerns the practice of kidnapping, homicide, exposure or abandonment and concealment of corpse, the first three crimes being punished with a sentence of more than 3 years imprisonment, and since it seems convenient to identify the person who...                  

 
 
 
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 exhibited suspicious behaviour in the vicinity of the place where the child disappeared from, as mentioned in statements of folios 3150, 3154 and sq, the data requested by the public prosecutor being thus very important to discover the truth, I order (...) the soliciting telecommunications operator Portugal Telecom.”.                  

12. The (then) defendant Gonçalo Amaral was, until 2/10/2007, the PJ inspector in charge of coordinating the investigation into the disappearance of the applicant Madeleine McCann.

13. The defendant Gonçalo Amaral is retired from the PJ since 1/7/2008 (n° 19).

14. On 21/7/2008, the Republic General Prosecution office  informed through a "note for social communication" that the investigation mentioned in 5. would be shelved and could be reopened at the instigation of the Public prosecutor or at the  request of any interested party, if new evidence arose, raising serious, relevant and consistent investigation (n° 20).

15. The archiving dispatch concerning the criminal investigation, issued le 21/7/2008 by the prosecutor, says in particular this (...)

20. The (then) defendant Gonçalo Amaral is the author of the book Maddie - A Verdade da Mentira, published by the (then) defendant Guerra & Paz Editores SA.

23. Is part of Maddie – A Verdade da Mentira particularly the following prologue: (…)

24. The defendant Gonçalo Amaral concluded his book Maddie - A Verdade da Mentira as follows : 

For me and for the inspectors who worked on this case until October 2007, the investigation findings include 

1) The minor Madeleine McCann died in the apartment 5A of Vila da Luz’s Ocean Club, on the evening of 3 May 2007;

2) There has been a simulation of kidnapping ;

3) Kate Healy and Gerald McCann are suspected of involvement in the concealment of their daughter's body;

4) Death could have occurred as a result of a tragic accident.

5) There are clues of neglect in the protection and safety of children (pp.220-221).

 
 
 
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25. The book Maddie - A Verdade da Mentira was launched on 24/07/2008 in El Corte Inglês Shopping Centre in Lisbon.

40. The (then) defendant Valentim de Carvalho-Filmes e Audiovisuais SA produced the documentary Maddie , The Truth of the Lie, directed by Carlos Coelho da Silva, which is an adaptation of the book written by the (then) defendant Gonçalo Amaral. This documentary, in DVD format, is appended to the files.

41.At the beginning of the documentary, the defendant Gonçalo Amaral states the following:

My name is Gonçalo Amaral and I have been an inspector for the Judiciary Police for 27 years. I co-ordinated the investigation into the disappearance of Madeleine McCann on the 3rd of May 2007. During the next 50 minutes I will prove that the child was not abducted and that she died in the holiday apartment in Praia da Luz. Discover all the truth about what happened that day. A death that many want to cover up.

42. At the end of the documentary, the defendant Gonçalo Amaral states the following :

What I know tells me that Madeleine McCann died in apartment 5A on the 3rd of May 2007. I am certain that this truth one day will be ascertained. The investigation was brutally interrupted and there was a hasty political archival. Some are hiding the truth but, sooner or later, the varnish will crack and revelations will surface. Only then will there be justice for Madeleine McCann.

43. The defendant Valentim de Carvalho-Filmes e Audiovisuais SA,  concludes the documentary with this statement :

The mystery remains, the former inspector believes that one day the truth will be known. For now, we are aware only that on the 3rd May of 2007, Madeleine McCann disappeared in Praia da Luz. She was 3 years old and she was a happy child. 

48. The defendant Gonçalo Amaral gave to the newspaper CdM an interview, conducted by the journalists Eduardo Dâmaso and Henrique Machado and published on the 24th July 2008. Its contents is totally reproduced and announced on the front page, having been attributed to Gonçalo Amaral in particular the following statements (...) 

65. The Prosecutor Office in Portimão determined the creation of a digital copy of the investigation process, with the exception of parts subject to absolute secrecy, and its delivery, upon request, to several people, including journalists, which occurred.    

 
 
 
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66. The content of such a digital copy was made public, including through the Web, having been publicly and universally read, commented and discussed.

67. The claimants Kate and Gerald McCann have alerted the press about the disappearance of their daughter.

68. The claimants Kate McCann and Gerald McCann gave an interview to the North-American TV program “Oprah" hosted by Oprah Winfrey, revealing the existence of new witnesses, reconstructions and e-fits.

69. The Oprah interview was worldly broadcast by signals available through satellite and cable networks.

70. This interview for the Oprah program was broadcast in Portugal by (the TV Channel) SIC, on the 9.05 and 12.05.2009.

71. The claimants Kate McCann and Gerald McCann, in collaboration with the British television station Channel 4, made ​​a documentary about the disappearance of their daughter, entitled Still missing Madeleine, lasting 60 '.

74. The documentary Still missing Madeleine, translated Maddie, Two Years of Anguish, was broadcast by SIC on 12.05.2009.

75. On 17.10.2007, Clarence Mitchell, spokesman for Kate McCann and Gerald McCann said they were realistic enough to admit that their daughter would probably be dead.

76. There was a huge public interest in Portugal and throughout the world, about the events surrounding the disappearance of Madeleine McCann, the investigations carried out to find her and to determine what in fact happened, their evolution and vicissitudes, among which the constitution of the claimants Kate and Gerald McCann as suspects in the investigation process and the removal of the defendant Gonçalo Amaral from investigations that were developed under his coordination.

77. The claimants Kate and Gerald McCann hired, through Madeleine's Fund, PR firms and spokesmen. 

78. The so-called Maddie case has been deeply treated in the Portuguese society and in foreign countries, either by media organs or in books, like the works of Paulo Pereira Cristovão, Manuel Catarino and Hernani Carvalho.

 
 
 
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79. The so-called Maddie case was commented by Dr. Francisco Moita Flores, former Inspector, writer, and criminologist, as a columnist in various media.

80. The facts related to the criminal investigation of Madeleine McCann's disappearance that the defendant Gonçalo Amaral refers to in the book, in an interview with the newspaper Correio da Manhã and in the documentary are mostly facts that occurred and are documented in this investigation.

Next, let us recall the essential nucleus of the "European consensus" reached by the case-law of the ECHR on freedom of expression, built on interpretation and application of art. 10° of the European Convention of Human Rights :

(I) Freedom of expression, a postulate of democratic society and right. Being the basis of pluralism, of tolerance and of the spirit-opening necessary to the progress of this group of societies and to the individual development of its members ;

(II) the limitations on freedom of expression must be provided for by law, pursue a legitimate aim and be necessary in a democratic society ;

(III) when, in debates of issues of public interest, the possibility of restrictions on freedom of expression is particularly limited ;

(IV) the politicians, the public figures and senior officials of public administration, when in the exercise of their charge are subject to limits of criticism wider than private persons.

(V) In the examination of the limits of freedom of expression, de facto assertions have to be distinguished from statements of value, assertions addressed to the opponent's opinions from appraisals on the opponent's person, and what is criticism from what constitutes an insult and

(VI) the press has the duty to transmit information's and ideas on matters of public interest and in doing so it is allowed to resort to a certain amount of exaggeration, even of provocation (Cf. among many others, Smolor vs Poland, Thoma vs Luxembourg and Palomo Sanchez et al vs Spain). Cf. also about (I) Dalban vs Romania and Sabanovic vs Serbia and Montenegro (5955/06). As regards point (II), Azevedo vs Portugal (20620104) and Roseiro Bento vs Portugal (29288/02). Concerning point (III)., Lopes Gomes da Silva vs Portugal (37698/97) and Heinisch vs Germany (28274108). As to the point (IV), Sabanovic vs Serbia and Montenegro (5995/06) and Vellutini and Michel vs France (32280/09). On the topic of (V), Petrina vs Romania (78060/01) and Petrenco vs Moldavia (20928/05)...

 
 
 
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… As for point (VI), Renaud c. France (13290/07) and UJ vs Hungary (23954/10)).

In view of the above legal and case law framework, it is necessary to examine the specific situation set out in the minutes of this case, taking into account the facts (materia de facto) given as proven, already reproduced.

What results from this, as well referred in the sentence of the first instance, is that the book in question is the expression of an opinion, including the account of the conclusions that the author draws from the means of obtaining evidence produced in the investigation in order to formulate a thesis, an hypothesis of verification of the facts. 

It appears that both the interview as well as the documentary at stake are nothing more than ways of publicising the book and the thesis defended there, although the documentary develops it in a way, perhaps, more appealing.

That same thesis is synthetically, as well referred in the sentence of the first instance, that there was no kidnapping of the minor, contrary to the initial premise of the criminal investigation which is what the child's parents maintain up to now. What happened was the accidental death of the child in the flat of the tourist resort, then the cover up of this event through the concealment of her corpse and the simulation of the referred crime, carried out by the claimants Gerald and Kate McCann. 

However, as stated by the justice instances, the put forward thesis is no novelty, since it is also contained in the report referred to in n° 9 of the proven facts, elaborated in the framework of the criminal investigation with the date of 10/9/07.

This was then a line of inquiry pursued in the investigation which, incidentally, established the constitution of the presently appellants as arguidos (formal suspects) (cf. n°s 10 and 11 of the proven facts).


In addition, since the office of the Portimão Public Prosecutor provided a copy of the aforementioned investigation, namely to journalists, its content was publicly and universally divulged and discussed (cf. n°s 65 and 66 of the proven facts).


Consequently, what is discussed in the present case is the exercise of the right to opinion of the respondent on matters of public interest concerning the appellants who, in this case, have to be considered public figures.


In fact, the 'public figure' concept arises in opposition to the 'private figure' one, being this one the anonymous citizens, living in the simpleness of their existence.

 
 
 
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Concerning the minutes of this case, it can be said, taking into account the typology in which is analysed the concept of public figure referred to by Iolanda A.S. Rodrigues de Brito, in Freedom of Expression and Honour of Public Figures, pp. 46-7, that we are dealing with relative public figures, in so far as the appellants intervene publicly in order to influence a debate of public interest. This way, the perspective of their public life, connected with that debate, subjects them to a public interest for information, which guarantees them the possibility of accessing the social media.

And also, they are voluntary public figures, because they accepted to be thrown into the vulnerability of the public sphere, as a consequence of the role that they tried to assume in the public debate in which they decided to intervene.

Actually, as stated in the judgement under appeal and as it results from the proven facts, it was the appellants themselves who, by virtue of having easy access to the public debate, multiplied in interviews and interventions in the national and international media. Thus they opened the way for any person wishing equally to express an opinion on the case, contradicting their thesis.

Now, as Francisco Teixeira da Mota points out, op. cit. p. 21, The ECHR, in assessing the cases that are submitted to them, grants' the maximum degree of protection to the public debate and to freedom of expression, when public or political issues are at stake, including the public figures themselves and their actions.

This Court in fact considers that freedom of expression, as provided for in article 10°-1 of the European Convention on Human Rights, constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man.

As already mentioned, the ECHR has developed a doctrine of enhanced protection of the freedom of expression, when the person targeted by the imputations of facts and by the formulation of dishonourable value judgements is a public figure and when a matter of public interest is at stake.

Actually, being a public figure and not a mere private person, the targeted person is more exposed, unavoidably and consciously, to a tight control of his behaviour and opinions by journalists as well as by the general public. This is why the public figure should demonstrate a much greater tolerance in regard of such control.

And this is all the more so when it happens that the targeted persons themselves are the ones who utter public statements susceptible of criticism. 

 
 
 
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Of course the public figure is entitled to protection of his reputation, even outside the scope of their private life.

What is meant is that the imperatives of such protection must be weighed against the interests of free discussion of public issues.

This way, in the name of robust controversy, should not be protected unjustified personal attacks addressed to dignity, integrity and moral and professional probity, considered obviously unnecessary and disproportionate.

However, here too, the intense confrontation of ideas can easily lead to determined exaggerations, which must, to a reasonable extent, be protected, particularly in cases where it occurs in a public forum endowed with reasonable conditions of equality and reciprocity.

We observe, on the other side, that freedom of opinion, in the wording of the art. 10° of the European Convention on Human Rights, is the first of the constitutive elements of freedom of expression.

The distinction between facts and opinions is one of the aspects that the ECHR refers to as of particular importance.

Thus, while the existence of facts is possible to demonstrate, the truth of opinions is not susceptible of being proved. Requiring the proof of the truth of an opinion is impossible to fulfil and infringes the own freedom of expression, which is a fundamental part of the right guaranteed by the art. 10° of the "European Convention on Human Rights". However, even when an assertion corresponds to a value judgement, the proportionality of the interference may depend on the existence of a sufficient basis for the contested statement, since an opinion without factual basis to support it might be excessive (cf. Oberschlick vs Austria (1991)).

Freedom of opinion enjoys an almost complete protection in the sense that the possible restrictions allowed by article 10°-1 are inapplicable because they reveal an incompatibility with democratic society, such protection preventing the States from discriminating between citizens according to their opinions. Citizens indeed can not suffer negative consequences because of their opinions (cf. in this sense, Iolanda Brito, op. cit. p. 65).

According to Manuel da Costa Andrade, in "Freedom of the Press and Personal Inviolability", Coimbra, p. 274, the tolerance given to value judgement is ostensibly more generous than that granted to de facto imputations (...). 

 
 
 
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As Anabela Gradim points out in "Handbook of Journalism - Urbi et Orbi Style Book", p. 74, Who writes opinion is aware of the partiality of their positions, but simultaneously admits and wishes that these be shared and adopted by a large number of recipients of this opinion - that is the meaning of the argumentation : convert, convince, regiment (Cf. Also Jónatas Machado, "Freedom of Expression–Constitutional Dimensions of the Public Sphere in the Social System", BFDUC, Coimbra, pp.425-6 and 768).

The ECHR has stressed that issues of public interest should be debated and that opinions expressed on such issues, offensive to the honour of public figures, often arising encrusted in violent, hard and exaggerated language, should be protected by freedom of expression.

In the present case, what is verified is that the respondent conveyed his opinion, in the terms exposed above, taking into account, according to his understanding, the outcome of the elements of evidence and the clues gathered in the scope of the criminal investigation opened by the disappearance of Madeleine McCann on 3/5/07.

Thus, the enhancing judgment and the logical-deductive reasoning he develops throughout the book leads the reader to the conclusion that the child - whose custody and safety, along with that of her siblings Sean McCann and Amelie McCann, were neglected by her parents, here appellants, though neither reckless nor grossly, as it is said in the filing order issued by the prosecutor of the Republic on 21/7/08 - died accidentally inside the apartment where she was, after which occurred the simulation of her abduction and the concealment of her corpse.

While he's reasoning, the respondent questions the grounds or the foundations on which the allegation that Madeleine had been abducted could be sustained.

Those conclusions were subsequently reproduced by the respondent in the documentary and interview mentioned above, where he sought to discredit the affidavit of the appellant Kate McCann.

There is no remaining doubt that the respondent having been up to 2/10/07, the Judicial Police Inspector responsible for coordinating the investigation into the disappearance of Madeleine McCann (n°12 of the proven facts), he could not fail to know, in detail, ...

 
 
 
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… the clues  and means of proof hitherto collected in it, and the inquiries that had hitherto been carried out.

That is why it is not surprising that the facts related to that investigation that the respondent refers to in the book, in the interview and in the documentary, are mostly facts that occurred and were documented in this investigation (n° 8 of the proven facts).

It should be noted that the understanding defended by the respondent was, also, in almost coincident terms, shared by chief inspector Tavares de Almeida, who wrote the report addressed to the Public Ministry and dated 10/9/7 (n° 9 of the proven facts).

It has still to be reckoned that the Public Ministry by fomenting by the JIC the obtention of (telecommunications) traffic data., alluded to their necessity for the investigation of the crimes of kidnapping, homicide, exposure or abandonment and concealment of a corpse. The sought to be obtained data were furthermore connected to the appellants and included not only the date of the facts but also the period they were staying in Portugal (n°10 of the proven facts).

These data were collected by order of the JIC (n° 11 of the proven fact).

Which means that the thesis profiled by the respondent, at a certain time, deserved being welcomed by the entity constitutionally in charge of carrying out the penal action (n° 11 of the proven facts).

For that matter, the appellants were constituted "arguidos" in the criminal investigation (n° 80 of the proven facts). 

This implies that emerged supported suspicion that they had committed crimes or crimes  (cf. art. 58° and 59° of the CPP ).

It is true that the criminal investigation was eventually closed, in particular because none of the clues which led to the constitution of the appellants as arguidos was subsequently confirmed or consolidated (n°15 of the proven facts).

However, even in the filing dispatch serious reservations are raised as to the likelihood of the allegation that Madeleine had been abducted, in view of the doubts raised by the Jane Tanner/Kate McCann version.

The investigation intended to see clarified those doubts by the reconstitution of the events mentioned in the closing dispatch, an initiative however that was made unfeasible by the witnesses' failure to appear after being summoned to.

 
 
 
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In the said order, it was concluded also that the appellants had neglected, although not recklessly or grossly, the duty of custody of their children, and still that, although it had not been possible to determine if the child was alive or not, it seemed more likely she was dead.

Actually a spokesman for the appellants said on 17/10/07 that they were realistic enough to admit that their daughter was probably dead (n° 75 of the proven facts).

From another angle, it has to be observed that, in the introductory note to the book at stake, the respondent affirms that the book's objective is to restore his good name which, in his understanding, was tarnished in the public sphere, to contribute to the discovery of the material truth and to the achievement of justice (n°23 of the proven facts)

It is clear, however, that the proven facts reveal that the respondent intended, on the one hand, to put in crisis the decision to remove him from the investigation, getting even to the point to suggest there had been a political management of the investigation and, on the other hand, to safeguard the rigour of the work of all the police professionals involved in the investigation until the moment he ceased to coordinate them.

Of all those circumstances does not result, in our view, that underlying the book, the documentary and the interview, exists an defamatory intention against the appellants, i.e an animus injuriandi, but rather an animus informandi and an animus defendendi.(23)

The opinion expressed by the respondent is sufficiently detailed in an intelligible and logical assessment of the facts and elements of evidence gathered in the investigation. Therefore the existence of a mere attack ad hominem to the persons of the appellants is not to be prefigured.

In addition, the disappearance of Madeleine and the subsequent investigation have become subjects of general interest and discussion at national and even international level, which, incidentally, was afforded by the conduct of the appellants themselves (n°s 65 to 71 and 76 to 79 of the proven facts).

Thus, everything points to balancing the interests at stake and following a balancing methodology adapted to the specificity of the case, in the sense of freedom of expression, which in this case requires greater protection, taking into account, also, the European legal context where we are inserted and the influence of the European jurisprudential paradigm of human rights.

 
Note 23

animus injuriandi (intention to offend) vs  animus informandi (intention to inform) and animus defendendi (intention to defend).

 
 
 
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But is, in this case, the protection of the appellants' rights to their good name and reputation closely related to the presumption of innocence, as said in the first instance's sentence?

And this because, as the appellants claim in the conclusions of their appeal allegations, beyond their being absolutely innocent and cleared by virtue of the filing order to close the proceedings, are they also entitled to benefit from the principle of presumption of innocence?

Let's see.

First of all it has to be said that the principle of the presumption of innocence (art. 32°-2 of the CRP, 11°-1 of the UDHR and 6°-2 of the European Convention on Human Rights) is a rule of treatment to be given to the arguido (formal suspect) throughout the judicial criminal process.

Accordingly, this principle can not be construed as a restriction on public discussion of potentially criminal facts, despite that public bodies should, in their communications, resort to the necessary reserve to avoid creating the conviction that the arguido is in fact guilty (Cf. Konstas vs Greece of 28/11/ 11 (n° 053466/071).

That referred principle may even impose, on the threshold of criminal proceedings, respect for an absolutory penal decision or even for a decision of archiving by the judicial authorities involved in subsequent proceedings (Allen vs United-Kingdom, Of 12/7/2013, n° 1025424/0991).

Nevertheless, the Court of Justice of the European Union has decided that the principle of presumption of innocence does not apply to subsequent civil proceedings (mainly compensatory) to criminal proceedings, at risk of depriving the victim of her own right to accede to the courts and to be compensated (Cf. the judgements in Y vs Norvvay (56568/00) of 11/ 5/2003 and Diacendo vs Italy (124/04) of 05/07/2012).


As Jónatas Machado points out, in "Freedom of Expression, Public Interest and Public Figures and Equalities", BFDUC, vol.LXXXV, 2009, p. 91, The presumption of innocence, because it's only a presumption, cannot overcome the search for the truth and the right of citizens to the truth. It cannot as well prevent public criticism and public scrutiny of the functioning of justice. The same happens, furthermore, with the attempt to demonstrate the innocence of a condemned person and thereby to move aside the mark of the conviction. The search for truth, including the truth about justice, has always been one of the main justifications of freedom of expression. 

 
 
 
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It must be reminded that, in the present case, the issue isn't the appellants' penal liability, in other words their innocence or their guilt concerning the facts leading to the disappearance of her daughter doesn't have to be appreciated here.

What is in discussion here is merely the civil liability of the respondents, on the grounds that they have expressed and disclosed the above-mentioned thesis/opinion on the disappearance in question.

It follows that the outcome of the present case is not such as to call into question the extra-procedural dimension of the presumption of innocence.

This means that, even if the action does not proceed, it will not imply, even in the eyes of the community. any consideration of the appellants' liability, because such outcome will never will be able to be equated to an observation of respective culpability (cf. on this topic the judgements Del Latte vs Holland (n°44760/98) of 9/11/2004 and Cheena vs Belgium of 9/5/2016).

In addition, we are faced with a decision of filing by the Public Ministry which is subject to modification through various ways.


Thus, in addition to the recourse to the jurisdictional way, by opening the inquiry (see note p.21) (art. 287° of the CPP) and the complaint to the hierarchical superior (art. 278° of the CPP), the investigation can be reopened if new elements of evidence arise invalidating the grounds called upon by the Public Ministry in the filing dispatch (art. 279° of the CPP).


This is indeed even mentioned in the Note to the Social Communication released by the Attorney General's office on 21/7/2008 and announcing that the filing of the investigation had been decided. It was reported that it could be reopened on the initiative of the Public Ministry or at the request of any interested party if new elements of evidence arise triggering serious, pertinent and consequential proceedings (n°14 of the proven facts).

In this way, as the aforementioned filing order is not a judicial decision stricto senso, nor does it assume a definitive form, less would it be justified invoking the principle of the presumption of innocence to restrain freedom of expression.

And the safeguarding of the authority of the judicial power (cf. article 10°-2 of the European Convention on Human Rights) is not alluded to, since is definitely outdated the traditional idea that criticism against the judicial power must be proscribed as it contributes to the undermining of its dignity, authority and credibility in the long term. The best guarantee of dignity of all State institutions in the long run consists in its permanent opening to public criticism.

 
 
 
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...(cf. Jónatas Machado, Freedom of Expression - Constitutional Dimensions, op. cit. pp. 566-7)

And let not be said, too, that the appellants were cleared by the order of filing the criminal proceedings.

In fact, that dispatch was not proclaimed by virtue of the Public Ministry having gained the conviction that the appellants had not committed any crime (cf. art. 277° of the CPP).

The filing, in this case, was decided because it was not possible for Public Ministry to obtain sufficient evidence of the practice of crimes by the appellants (cf. the cited art. 277°-2)

There is, therefore, a remarkable difference, and not merely a semantic one, between the legally admissible grounds of the filing order.

Thus, it does not appear acceptable to consider that the alluded dispatch, based on the insufficiency of evidence, should be treated as evidence of innocence.

We consider, therefore, that the invocation of breach of the principle of presumption of innocence should not be upheld. That principle does not fall under the decision about the question that has to be resolved.

But was the freedom of expression of the respondent conditioned by the functions he performed and did those, even when he was retired, impose on him the reserve duty, as was upheld in the first instance sentence and is reaffirmed by the appellants ?

It is certain that the respondent, in the capacity of retired Judicial Police agent, continues to be linked to the public service, keeping furthermore the rights and duties that do not depend on the activity situation (cf. art 74°-1 of the Retirement Statute, approved by DL n°498/72 of 9/12).

As referred to in the Attorney General Consultative Council opinion of 16.12.06, quoted in the first instance sentence, by Esteves Remédio, the doctrine considers as duties of the retired that do not depend on the activity situation the duty of loyalty, the duty of nondisclosure and the duty of appropriate conduct, this being insistently reported to the abstention from committing crimes.

Moreover that recommendation mentions that the duty of nondisclosure is to maintain professional secrecy as for the facts of which (the retired agent) is aware by virtue of the exercise...

 
 
 
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of his charge, and that are not aimed at the public sphere. (quoting art. 3° of the disciplinary statute).

And, furthermore, the nondisclosure duty extends beyond the exercise of one's functions, remaining in the course of retirement, but, as in the activity situation, it is required that the conduct affects in a pertinent way the functioning of the service or the dignity and the prestige of the function or of the Administration.

It should be noted that nowhere in the legislation quoted regarding this in the first instance sentence, it is alluded to the reserve duty.

 

In this way the art. 5°-2e of the DL 196/94 of 21/7, which approved the Disciplinary Regulation of the Judiciary Police, expressly refers to 'the nondisclosure duty'.

For its part, the art.12° of the DL n°275-A/2000 of the 9/1, which approved the new Organic Law of the Judicial Police, is subject to the epigraph "Secret of justice and professional" (cf. article 149° regarding retired agents).

Now, as Cunha Rodrigues wrote in Justice and Communication, BFD 68 (1992), p.124, 'nondisclosure' should not be confused with 'reserve'.

 

In the present case and on the topic of the nondisclosure duty or of the secrecy of justice, which remains in the course of retirement, it must be understood that we are faced with a functional obligation which essentially protects the interests of the service to which the respondent belonged, namely the effectiveness of the criminal investigation.

 

Still, the facts at stake had already been made public by the judicial authority and widely debated, both nationally and internationally. Moreover the investigation was already closed.

 

On the other hand, the eventual breach of the nondisclosure duty on the part of the respondent

would not thrust out, in the sphere of private individuals, any subjective rights or legally protected interests, and would not therefore be considered as a source of illicitness.

In addition, the ECHR, in similar situations, takes mainly into account the importance of the cooperation of an enlightened and well-informed public to the proper functioning of justice (cf. Saygili and Others vs Turkey of 8 /1/08 and July and Sarl Liberation vs France of 14/2/08).

 

We therefore consider that freedom of expression does not either have to yield to the invoked functional duty borne by the respondent, reason why his conduct was not illicit in the terms taken into account in the first instance sentence.

 
 
 
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In our view, the judgment under appeal is correct by understanding that the argumentation of the First Instance may be upheld and by stating that it would be hardly understandable that a civil servant, even more a retired one, should carry on his silence and reserve duties, thus limiting the exercise of his right to opinion as to the interpretation of facts already made public by the judicial authority and widely discussed (actually largely at the instigation of the protagonists themselves) in national and international media. 

Contrary to what the applicants claim, in order to subsume the legal provision for unlawfulness considered by article 484° of the CC, it is not enough that the fact stated or disclosed is susceptible, given the circumstances of the case, to undermine the prestige enjoyed by a person or the good image of that person in the social environment.

In fact, according to the Latin juridical axiom, qui jure suo utitur nemini facit injuriam (note : he who draws upon his legal rights harms no one).

This means that who acts in the exercise of a right is acting in accordance with the legal system and cannot therefore be held responsible in a civil point of view (see Antunes Varela, General Obligations, p.36).

Thus, when facts are imputed or expressed value judgements offensive to the honour of a public figure, it is possible that freedom of expression is being legitimately exercised.

That being, in the matter of expressing value judgements, the right to freedom of expression has a broader supporting appetence, given even the exceptional nature of the obligation to compensate for value judgements.

This does not preclude the maintenance of a concern for a balanced legal and concrete solution to the conflict between freedom of expression and the honour of public figures.

What these notions cannot be submitted to is to any anticipated judgement of abstract preference for any of them, since they meet two fundamental rights, constitutionally consecrated, and that hierarchically occupy the same place.

But since it is impossible for the conflict between two equal rights or of the same species to be resolved by the principle of equal treatment (cf. art. 335° of the CC), the right that, in its exercise, is considered superior will be bound to prevail (cf. n° 2 of the same article), ...

 
 
 
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… taking into account the necessary balancing criteria evinced by this specific case.

These criteria have already been set out in the present judgement, as are in particular the achievement of a public interest, the public status of the alluded individuals, the sufficient factual basis of the ventured value judgements and the nature thereof, as well as the respective context (having a background of heated controversy on a matter of relevant public interest).

We consider that, in this case, in view of the verified matter of facts, the exercise of freedom of expression was contained within limits which must be considered admissible in a (post-) modern democratic society, open and plural, in view of the aforementioned criteria of equilibrium and the alluded principle of proportionality, which excludes the unlawfulness of the honour injury of the appellants.

Such a conclusion results from the interpretation of the internal norms in conformity with the Constitution, but also with the European Convention on Human Rights, read by the lawcase compendium of the ECHR.

According to Jónatas Machado, in "Freedom of Expression - Constitutional Dimensions", p. 750, the measure of civil and penal protection of personality rights is determined on the basis of the constitutional parameters of the freedoms of communication, refusing any systematic-immanent enhancing autonomy of those branches of law and emphasising particularly the constitutional purpose of creating a public sphere of open and uninhibited discussion of matters of general interest, this objective having always to be present in the analysis of the results of the application of the law.

Adding, this revere professor, in "Freedom of Expression, Public Interest", op. cit. p.74, that The preferential position of freedom of expression, in its quality of precondition for the democratic functioning of the political system, is an indisputable constitutional truth.

And alluding, more ahead, last op. cit. p. 77, to the duty to interpret the legal norms on the protection of honour, good name and reputation in harmony with the Constitution, in order to serve the promotion of constitutional purposes substantiating the protection of a free and democratic society where questions of public interest seal the subject of information and free and open discussion.

The case-law of the ECHR, as it has been already abundantly exposed above, is obviously inclined towards a restrictive interpretation of personality rights...

 
 
 
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… in confrontation with freedom of expression, so as not to compromise its central role in a democratic society.

On the other hand, as stated in the summary of the aforementioned STJ Ruling of 7/2/08 - From the case-law which has been ratified by the ECHR, it results an imposition on the mode of thinking : it is not justified wondering straightaway whether a particular piece of journalism offends someone. The starting point should rather be the freedom enjoyed by the respective author(s). Only after it should be questioned whether is justified – in view of the referential criteria of the same court, including a proper margin of appreciation on the part of the internal organs of each of the States signatory of the Convention – the restrictive interference in the field of that same freedom and the consequent passage to legal sanctions.

For that matter, the Constitutional Court has affirmed a clear historic will of the constituent legislator to follow the step of the European jurisprudence in the development of the fundamental rights likewise provided for in The Convention and the Constitution (cf. the Ruling of the Constitutional Court 157/2001, in D.R. Serie I de 10/5/01).

Faced with a settled case-law by the ECHR, as it happens in cases such as the present one, the Portuguese courts cannot but be influenced by the European paradigm of human rights.

This, however, does not mean resolving the conflict in question with an abstract preference for freedom of expression, but rather linking to the assumptions, i.e. to the European criteria for conflict resolution.

What is at stake, fundamentally, is to identify the legal good that will be, concretely, prevailing, taking into account that, in each conflict resolution, the balance pans, to begin with, are in a position of equilibrium, since freedom of expression and honour must start from a position of equality.

For this purpose, it is necessary to introduce the respective evaluation criteria in the pan of freedom of expression or in the pan of honour.

And it is playing with weights and counterweights that, in the end, it will appear which of the pans weighs more.

Well, in the present case, as it results from the foregoing, the pan that weighs more and is the freedom of expression one.

Which amounts to saying that this is the legal good that, in this case, prevails. 
 
 
 
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Thus we shall have to conclude that, in the present case, prevail the rights of the respondents to freedom of expression and information and to freedom of the press and of the media.

Therefore the sentence under appeal does not deserve censure while excluding the unlawfulness of the respondents' conduct and, consequently,  absolving them of all requests.

Dismissed, accordingly, are the conclusions of the appellants' allegations. We do not reckon that this judgement has violated any legal rule turned into the CRP , but rather we understood, as it results from what has already been discussed, that the interpretation of the norms applicable to this case was made in accordance with the Constitution.

3 - Decision.

Given what has been said, the request of review is denied and the appealed judgement confirmed.

Costs for the appellants.

 
 
CC : :

http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=775&tabela=leis

   
UDHR :

http://www.humanrights.com/what-are-human-rights/universal-declaration-of-human-rights/articles-01-10.html

   
CRP :

http://www.legislationline.org/download/action/download/id/1696/file/
5b9c1103a855967f0d5979c86a02.htm/preview

   
CPP : http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=199&tabela=leis
   
STJ :

 http://www.stj.pt/

   
CPC : http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=1959&tabela=leis

 

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