Introduction |
The
document,
a matéria de
prova,
was released
for all
lawyers at
the last
hearing, on
January
21, 2015,
in order for
them to read
it and
eventually
discuss it
or ask for
clarifications.
The lawyers
had been
provided
before the
hearing with
a list of
all
requirements
written by
the judge.
As this
document's
objective
was to
orientate
the lawyers
in their
last task in
the trial,
the
allegations
of law, it
wasn't
supposed to
be released
to the
media. But
it happened
to be and
not in an
appropriate
and correct
manner.
Gonçalo
Amaral's
lawyer was
left with no
choice but
releasing
the document
itself to
the media.
He limited
it to the
first part
of the
document,
the
decisions of
the judge
concerning
the
evidence.
The document
is composed
of 2 parts,
the first
being the
judge's
decisions
about the
evidence and
the second
including 4
sub-parts :
1) the
references,
2) the
judge's
analysis of
certain
statements,
3) the
elements
leading to a
positive
conviction
and 4) the
elements
leading to a
negative
conviction.
In the first part of the document and for each of the 37
points, the
judge
mentioned
the
considered
affirmation
only when
she
reformulated
it.
When this affirmation has been kept in the exact form it
has in the
list of
requirements
established
by the
judge, it
had no
reason to be
repeated. In
this case
and to allow
understanding,
the
affirmation
is added in
the blue
colour.
When the judge has reformulated the affirmation, it is
mentioned,
but what she
suppressed
or changed
isn’t. In
this case
and
to
improve
understanding,
a note is
added in the
green colour. |
|
Page 01 |
1. Gonçalo Amaral made the statements that are
attributed
to him
under
the
Correio
da Manhã.
Proved.
2.
Proved
that
the
defendant
Guerra&Paz
fixed
the
cover
price of
the book
Maddie -
A
Verdade
da
Mentira
in
Portugal
is €
13,33.
According
to the
affirmation
2 :
13,80,
VAT
included
(6%).
3.
and
4.
Proved
that the
defendant
Gonçalo
Amaral
earned
from the
sales of
the book
“Maddie,
A
Verdade
da
Mentira”
in 2008
and 2009
an
amount
of €
342.111,86.
According
to the
affirmation
3 : GA
earned
from the
sales in
Portugal
€
621.000.
According
to the
affirmation
4, GA
has
earned
from the
sale of
editions
in
foreign
languages
of the
book not
less
than €
498.750.
5.
The book
was sold
in
Brazil
by the
defendant
Guerra e
Paz,
Editores
SA.
Not
proved.
6.
Proved
that
the DVD
was sold
for €
6,95 by
Presselivre
Imprensa
SA
together
with the
newspaper
Correio
da Manhã,
owned by
this
company.
According
to the
affirmation
6 :
cover
price of
€ 6.
7.
Proved
that
the
defendant
Gonçalo
Amaral
earned €
40.000
from DVD
sales in
2008.
According to the affirmation 7, he earned from the sale of the
DVD €
112.500.
8.
Proved
that the
DVD was
edited
and the
edited
copies
were
commercialized
by
Valentim
de
Carvalho–Filmes,
Audiovisuais
SA
through
an
agreement
with
Presselivre
SA.
The
affirmation
8 uses
“sold"
instead
of
"commercialized".
9.
The
defendant
Valentim
de
Carvalho–Filmes,
Audiovisuais
SA
had
already
made the
DVD, in
an
English
version,
available
for
immediate
delivery
via
internet
order.
Not
proved.
10.
At least
2.200.000
people
have
watched
the
program
that was
broadcast
on
13.4.2009.
Proved.
11.
Because
of the
statements
made by
the
defendant
Gonçalo
Amaral
in the
book, in
the
documentary
and in
the
interview
to
Correio
da Manhã,
the
Judicial
Police
stopped
collecting
information
and
investigating
the
disappearance
of
Madeleine
McCann.
Not
proved.
12.
Because
of the
statements
made by
the
defendant
Gonçalo
Amaral
in the
book, in
the
documentary
and in
the
interview
to
Correio
da Manhã,
the
claimants
Kate
McCann
and
Gerald
McCann
are
completely
destroyed,
from a
moral,
social,
ethical,
sentimental,
family
point of
view,
much
beyond
the pain
that
their
daughter’s
absence
causes
them.
Not
proved.
13.
Proved
that
as a
consequence
of the
affirmations
of
Gonçalo
Amaral
in his
book, in
the
documentary
and in
the
interview
with
Correio
da Manha,
the
claimants
felt
anger,
despair,
anxiety,
preoccupation,
having
insomnia
and lack
of
appetite.
According
to
affirmation
13, the
claimants
felt
permanent
anguish,
insomnia,
lack of
appetite,
anxiety
and
irritability,
preoccupation
and
indefinable
fear.
|
|
Page 02 |
|
14. Proved that the couple feel badly about being
considered
responsible
for
hiding
their
daughter's
body and
simulating
her
abduction
by those
who
believe
in
defendant
Gonçalo
Amaral's
thesis
on the
disappearance
of
Madeleine
McCann.
According
to
affirmation
14, the
claimants
feel a
deep
shame
and an
indescribable
ill-being
because
they are
considered,
by most
people
who know
the
theories
of the
defendant
Gonçalo
Amaral,
as
having
responsibility
in the
death of
their
daughter,
being so
cowardly
that
they
have
hidden
her
cadaver,
simulating
abduction,
all of
this to
avoid
criminal
accusations.
15.
Proved
that the
couple
feel
with
much
concern
the
necessity
to keep
their
younger
children
away
from
finding
out
about
said
thesis.
According
to
affirmation
15, the
claimants
live
under
enormous
daily
pressure
due to
the need
to keep
their
younger
children
away
from the
knowledge
of the
defendant
Gonçalo
Amaral’s
opinions
about
their
moral
integrity.
16.
Namely
because
of
defendant
Gonçalo
Amaral’s
statements
in the
book, in
the
documentary
and in
the
interview
to
Correio
da Manhã,
claimant
Kate
McCann
is
immersed
in a
deep and
serious
depression,
which
has
already
made her
state
publicly
I
wish I
was in a
coma, to
relieve
the pain.
Not
proved.
17.
Proved
that
Sean and
Amelie
started
school
in
August
of 2010,
not
having
learned
about
defendant
Gonçalo
Amaral's
thesis
yet.
According
to
affirmation
17, Sean
and
Amelie
MacCann
will
soon
become
aware of
the
conclusions
that are
mentioned
in the
process,
because
they
will go
to
school.
18.
63.369
copies
of the
DVD were
not
sold,
having
been
destroyed
afterwards.
Proved.
19.
Proved
that
defendant
Gonçalo
Amaral's
retirement
from the
PJ
started
on July
1st,
2008.
According
to
affirmation
19 the
date is
1.6.2008.
20.
Proved
that
the
Attorney
General’s
Office
released
a note
for the
media on
the 21st
of June
of 2008
(corrected
by the
judge in
the
final
sentence),
announcing
the
archiving
of the
inquiry
on the
facts
and
informing
that it
could be
reopened
on the
MP’s
initiative
or at
the
request
of
someone
concerned,
if new
evidence
appeared
that
would
prompt
serious,
relevant
and
consequent
diligences.
According
to the
affirmation
20, the
date is
22.6.2008
(in
fact
22.7.2008).
21.
The
criminal
inquiry
was
reopened
due to
the
appearance
of new
evidence.
Not
proved.
22.
The
attention
of the
media
and of
people
in
general
diminished
when
defendant
Gonçalo
Amaral’s
book was
published.
Not
proved.
23.
Proved
that
the book
sales
were in
part
done by
consignment
(deposit)
and
partly
firmly
sold
with a
right to
return
copies
for
various
motives
like
production
fault,
damage
of
fabrication
or rough
handling
or
remaining
unsold.
According
to
affirmation
23, the
sale was
only on
consignment,
being
subject
to
devolution
for
various
reasons,
like
handling,
manufacturing
defects
or their
non-transaction.
24.
The
so-called
“Maddie
Case”
has been
profoundly
treated
within
the
Portuguese
and
foreign
society,
whether
by the
media,
or
through
books,
like
those
authored
by Paulo
Pereira
Cristóvão,
Manuel
Catarino
and
Hernâni
Carvalho.
Proved.
25.
The
so-called
“Maddie
Case”
was
commented
upon by
Dr.
Francisco
Moita
Flores,
former
inspector,
writer,
criminalist
and
commentator,
in
various
media.
Proved.
26.
For
unknown
reasons,
this
article
is
by-passed,
though
there is
an
affirmation
26
:
Have the
claimants
Kate
MacCann
and
Gerald
MacCann
hired
communication
firms
and
spokespeople
through
Madeleine’s
Fund
?
27.
and 28.
Proved
that
the
facts
referred
to in
the
book, in
the
interview
do
Correio
da
Manhã
and in
the
documentary
concerning
the
investigation
are
mostly
facts
that
occurred
and are
documented
in that
investigation.
The
affirmation
27
concerns
only the
book and
the
interview,
whereas
the
allegation
28
questions
the only
presence,
in the
documentary,
of facts
that are
also in
the
inquiry
files.
29.
After a
deliberation
on
October
27th
2008 the
capital
of VC
Filmes
was
increased,
and
registered
on
September
28th
2009,
the
effect
of which
being
that the
capital
of that
firm was
now
detained
in a
proportion
of 60%
by
Estúdios
Valentim
de
Carvalho,
Gravações
e
Audiovisuais
SA
and of
40% by
Fundo
de
Investimento
para o
Cinema e
o
Audiovisual.
Proved. |
|
Page 03 |
30. Proved that on June 6th 2008 the defendant VC
Filmes
agreed
to yield
to VC
Multimedia
the
rights
to
commercialize,
distribute,
exhibit
and
broadcast
several
cinematographic
and
audiovisuals
works
(films,
mini-series
and
documentaries)
that
were to
be
produced
within 5
years.
The
affirmation
30 uses
again
"sell"
instead
of
"commercialize"
and,
instead
of
"several...
within 5
years",
mentions
"all of
the
cinematographic
and
audiovisual
work
that it
creates,
develops
and
produces".
31.
Until
today
the
documentary
has been
reproduced
only
once to
be
edited,
published
and sold
in
Portugal
under
video
format,
in this
case a
DVD.
Proved.
32. The reproduction and
edition
of the
documentary
in video
format
have
been
authorised
by
Valentim
de
Carvalho
Multimédia
SA
to
Presslivre,
Imprensa
Livre SA,
owned by
the
newspaper
Correio
da Manhã,
according
to a
contract
between
both.
Proved.
33.
The DVD,
its
covers
and
packages
would
be, as
they
were,
manufactured
on
behalf
of,
under
order of
and
under
the
responsibility
of
Presslivre,
in order
to be
distributed
and sold
together
with
newspaper
Correio
da Manhã.
Proved.
34.
The
entire
process
of
registering
and
classifying
the
video
edition
(DVD) of
the
documentary
with
ICAG
would
be, as
it was,
developed
by
Valentim
de
Carvalho
Multimédia,
the cost
of the
process
being
carried
by
Presslivre,
as it
did.
Proved.
35.
Proved
only
that the
documentary
was
distributed
for sale
together
with the
distribution
for sale
of the
newspaper
Correio
da Manhã.
According
to
affirmation
35, the
distribution
for sale
took
place in
conjunction
with the
distribution
for sale
of the
newspaper
Correio
da Manhã’s
edition
of April
24,
2009.
36.
The
documentary
was
reproduced,
and even
subtitled
in the
English
language,
by third
parties
that
published
it on
the
internet,
without
permission
and
against
the will
of the
defendant
Valentim
de
Carvalho
– Filmes,
Audiovisuais
SA.
Proved.
37.
Illicit
diffusion
damages
not only
the
rights
that are
held by
defendant
Valentim
de
Carvalho
– Filmes,
Audiovisuais
SA
over the
documentary,
but also
its
commercial
exploration,
because
any
citizen
can
watch
the
documentary,
also
only one
“click”
away.
Proved.
Motivations
for the
decisions
--
Documents
of
reference
The
positive
and
restrictive
answers
above
(the 37
articles)
result
from the
critical
and
conjoined
analysis
of all
the
documented
evidence,
through
images
and
sound
recordings
(especially
of the
DVD),
witness
statements
and
other
declarations,
increasing
the
value,
in
particular,
of the
elements
of proof
that
further
will be
mentioned
particularly
according
to the
order of
the
respective
answers.
In terms
of
general
considerations,
it is
important
to
mention
the
documents
that
were
joined
to the
Autos
(the
main
ones and
the
unnamed
providência
cautelar
("injunction")
and were
most
pertinent
for the
building
of the
conviction.
Those
are :
a) Quote
of the
original
of the
July 24
2008
Correio
da Manhã
article
that
contains
the
interview
of GA
mentioned
– pp.
(93-98
of the
injunction
(providência
cautelar,
PC)
b) Copy
of the
April 15
2009
Público
article
with
mention
of the
number
of TV
spectators
who
watched
the
documentary
broadcasting
– in p.
130 of
the PC.
c) Quote
of the
Noticias
TV
mentioning
the
audience
for the
same
documentary
– p. 132
of the
PC.
d) Copy
of the
report
concerning
the
shelving
of the
investigation
(n°201/07.0GALGS)
– pp.
144-173
of the
PC.
e)
Publicity
for the
launching
of the
book on
24 of
July – p.
371 of
the PC.
f)
Contract
"Option
of
rights
Deal
Memo"
between
Gonçalo
Amaral
and
defendant
VC
Filmes
on March
7 2008 –
pp.
422-23
of the
PC.
|
|
Page 04 |
|
g) "General Contract on distribution" between VC Filmes
and
Valentim
de
Carvalho
Multimédia
on June
6 2008
and
"Addition
for TV
productions"
on
February
28 2009
– pp.
916-24
of the
PC.
h)
"Contract
for
Videograms
distribution"
between
Valentim
de
Carvalho
Multimédia
SA
and
Presselivre
SA
on March
31 2009
– pp.
1047-53
of the
PC.
i)
"Contract
for
transfer
of
copyright"
between
Guerra&Paz
and
Gonçalo
Amaral
on March
10 2008
–
pp.277-281
of the
principal
process
(PP).
j) Copy
of the
"Communiqué
for the
media"
from the
Procuradoria-Geral
da
República
(the
Public
Ministry)
dated
July 21
2008 – p.
538 of
the PP.
k)
Information
from the
PJ,
dated
January
18 2012,
stating
that up
to this
date the
claimants
had not
requested
the
reopening
of the
investigation
– p.1037
of the
PP.
l)
Information
from
Marktest
Audimetria
SA
about
the TV
audience
of the
documentary
– p.
1045 of
the PP.
m)
Information
from the
PJ about
the date
on which
defendant
Gonçalo
Amaral
retired
(July 1
2008) –
p.1046
of the
PP.
n)
Information
from
Presselivre
SA
concerning
the
DVD's
sale
price
(6,95
tax
included)
– p.
1047 of
the PP.
o)
Copies
of
receipts
issued
by
defendant
Gonçalo
Amaral
for
defendant
Guerra&Paz
that
amount
to €
307.900,69
– pp.
1054-56
of the
PP.
p)
Copies
of
receipts
issued
by the
same
defendant
for
VC
Filmes
that
amount
to €
36.000 –
pp.
1085-87
of the
PP.
q)
Information
from the
PJ dated
January
13 2012
about
the
processing
of the
matter
having
an
inquiry
potential
after
the
shelving
of the
investigation
– p. 116
of the
PP.
r)
Information
from the
PJ dated
May 30
2012
about
the same
topic –
pp.
1292-94
of the
PP.
s)
Information
from
defendant
Guerra&Paz
about
the sale
price of
the book
– p.
1368 of
the PP.
t) Act
nb 3 of
the
Shareholders
General
Assembly
of
defendant
VC
Filmes
and
Registration
Certificate
of that
same
company
– pp.
1819-40
of the
PP.
u)
Invoices
issued
by
Valentim
de
Carvalho
Multimédia
for
Presselivre
SA –
pp.1841-42
of the
PP.
v)
Declaration
of VASP
about
the
sending
for
destruction
of
63.369
copies
of the
DVD – p.
1843 of
the PP.
|
|
Page 05 |
w) Information from the Fiscal Administration related to
the declared
income of
defendant
Gonçalo
Amaral in
2008 and
2009 – p.
1095 of the
PP.
x) Copy of
the book
"Maddie – A
Verdada da
Mentira"
joined to
the Autos.
y) Copy of
the DVD with
the same
name, also
joined to
the Autos
and which
was viewed
during a
hearing.
z) Digital
copy of the
criminal
investigation
provided to
the media.
Analyse of
the
statements
Included in
the general
considerations
topic there
follows a
brief and
critical
analysis of
the main
witnesses'
statements :
1) Susan
Lorraine
Hubbard
– married to
an Anglican
priest whose
mission was
temporarily
on the
Algarve. She
arrived in
Portugal 3
days after
the
disappearance
of the
child. She
became a
friend of
the
claimants.
She stated
that they
are very
strong
people,
"they are
doctors",
and added
that "many
people
turned their
backs on
them" after
the book was
published
and moreover
after the
documentary
was
broadcast.
She said she
witnessed
scenes of
that kind.
She affirmed
that the
idea that
all thought
that the
child had
died was
devastating
for them,
that they
became sad
and angry
and feared
that if
people
believed
that
Madeleine
was dead
that justice
wouldn't be
done. Asked,
she affirmed
that the
claimants
didn't feel
properly
offended by
the book,
but were
surprised
that it was
allowed to
be published
the way it
was.
2) Emma
Loach –
worked for
the
claimants as
a freelance
producer of
the
documentary
produced by
the
claimants a
year after
the
disappearance.
She became a
friend of
the
claimants.
She
described
them as
"strong and
stoics" and
confirmed
that they
mainly
worried that
people,
thinking
that
Madeleine
was dead and
would stop
searching
for her. She
affirmed a
fact that is
refuted by
the criminal
investigation
– that
before the
book there
was no
thesis of
Madeleine's
death in the
flat. She
referred to
the
claimants
feeling
shame and
humiliation
after the
book was
published
and the
documentary
was
broadcast
that neither
the
characters
nor the
statements
of the
claimants
support.
Because of
these
aspects and
also because
this person
belongs to
the circle
of people
who worked
for the
claimants
and/or for
Madeleine's
Fund,
this
statement is
subject to a
particular
critical
appreciation
of
credibility.
3) David
Martin
Trickey
– consultant
of the
claimants in
the
psychology
area
concerning
the
interaction
of the
parents with
their two
other
children. He
has been a
clinical
psychologist
for 20
years,
having
started to
work with
families of
missing
children 10
years ago.
He met the
twins some
weeks after
the
disappearance
and mentions
that, thanks
to their
age, they
were
protected
from the
book's
effects. He
affirmed
that the
fear is
that, when
exposed to
the book,
they may
question
their trust
in their
parents and
their
ability to
protect
them. He
referred to
another
preoccupation
concerning
the friends
of the twins
confronting
them with
the book and
using it to
attack them.
He said that
his
involvement
with the
twins was
outlined in
the
perspective
of an
"ambiguous
loss",
referring
there to the
disappearance
of Madeleine
McCann. |
|
Page 06 |
|
4) Angus
McBride
–
lawyer,
assisted
and
represented
the
claimants,
counselling
them
about
the
criminal
investigation,
the
relationship
with the
Portuguese
lawyers
and
being an
auxiliary
in "the
media
cover"
issue.
He is a
specialist
in
criminal
law and
relations
with the
media.
His
statement
was
practically
all
constituted
by
opinions,
especially
about
the
impact
of the
book on
public
opinion
in the
UK.
5) Alan
Robert
Pike
– having
a
bachelor's
degree
in
social
sciences,
he was
contracted
by the
tour
operator
of the
claimants'
holiday
company
and
then, at
the end
of 2007,
by the
claimants
for
psychological
help. He
stated
that the
publication
of the
book and
its
conclusions
brought
anxiety
to the
claimants
and that
one of
the more
devastating
effects
was, for
them,
believing
that the
book
would
influence
the
public
opinion,
inducing
people
to stop
searching
for
Madeleine.
He
affirmed
that
Kate MC
told him
that she
had
spent
many
days
crying
because
of the
injustice
meant by
the
publication
of the
book. He
said
that
when she
saw the
documentary
she was
even
more
devastated.
He
described
the
claimants
as
"angry,
frustrated
and
desperate
at not
being
able to
do
anything".
Asked
about
the
claimants'
feelings
after
being
made
arguidos,
he
stated
that,
somehow
paradoxically,
they
were
confused
for not
having
been
made
arguidos
earlier,
whereas
they
were
prepared
for it,
and that
this
fact
didn't
traumatize
them.
Once
more,
because
this
person
worked
for the
claimants,
his
statement
is
subject
to a
special
critical
evaluation
of
credibility
and must
be
supported
by other
statements
or
securely
based on
common
experience
rules.
6) João
Mechior
Gomes
–
now
Attorney
General
Deputy,
he was
invited
on
September
10 2007
to
supervise
and
coordinate
the
criminal
investigation,
a task
that he
fulfilled
up to
November
8/9
2010. He
stated
that up
to when
his
function
ceased
the
investigation
wasn't
reopened,
being
one of
the
signatories
of the
shelving
report.
He
didn't
transmit
any
other
pertinent
information. |
|
Page 07 |
|
7) Ana
Claudia
Nogueira
Santos
Fernandes
– she
worked
for the
claimants
between
September
2009 and
August
2011 on
their
relationship
with the
media.
She
denied
that the
attention
of the
media
and the
public
diminished
with the
publication
of the
book,
affirming
that
between
2009 and
2011
about
3000
news
articles
were
published
"very
much
focused
on the
book's
opinion".
She said
also
that the
documentary
circulated
on the
Web,
with
English
subtitles.
8.)
Michael
Terence
Wright
–
married
to a
cousin
of Kate
MC, he
has
known
her
since he
was 10.
He
stated
that the
claimants
first
reacted
to the
book
with
"much
anger"
and that
before
the book
there
were
already
"chats"
on the
Web that
speculated
about
the
disappearance
and
mentioned
the
thesis
of death
and
cover
up. The
credibility
of his
statement
is
obscured
by the
fact
that he
was
accompanied,
when he
appeared
in
court,
in
company
of (sic)
handwritten
notes (p.
1164 of
the
deeds)
which
appear,
in order
according
to an
almost
perfect
time-line,
the
topics
of reply
to the
questions
that
were
made to
him
during
the
hearing.
9.)
Brigid
Patricia
Cameron
– sister
of
Gerald
MC, she
arrived
in
Portugal
on the
Saturday
following
the
disappearance,
having
stayed
there
for 3
months
and then
helped
to
"bring"
the
family
back to
the UK.
She was
very
close to
the
claimants,
revealing
a
detailed
knowledge
of their
emotions
and
state of
mind,
although
the
familial
proximity
advises
corroboration
of her
statement
with
others
or with
the
common
experience
rules.
She
affirmed
that,
when the
book was
published,
people
started
to care
and the
pain was
felt by
all the
family.
She
stated
that
Kate's
mood was
very low
and that
she
couldn't
deal
with
daily
life,
she ran
long
distances
and
prayed
every
day. She
stated
that the
claimants
were sad
when
they
were
made
arguidos,
but that
the
publication
of the
book was
different,
they
"dehumanized
themselves".
She
affirmed
that the
twins
entered
school
in
August,
3 years
and a
half
back,
when
they
were 5
years
old.
10)
Henrique
Romão da
Silva
Leite
Machado
–
journalist
at the
Correio
da Manhã
since
2005, he
is the
author
of the
interview
included
in this
trial.
He
confirmed
that the
affirmations
attributed
to
defendant
Gonçalo
Amaral
in this
interview
are his,
adding
that
they
were
recorded.
11)
Eduardo
José
Campos
Dâmaso
– deputy
director
of the
same
journal,
he
confirmed
the
authenticity
of the
declarations
attributed
to the
defendant,
affirming
that no
complaint
was
interjected
about an
eventual
lack of
rigour.
He
denied
the
veracity
of the
fact
mentioned
in
article
22
(Unproved
– The
attention
of the
media
and of
people
in
general
diminished
when
defendant
Gonçalo
Amaral’s
book was
published)
and
confirmed
the
content
of
article
24
(Proved
– The
so-called
“Maddie
Case”
has been
profoundly
treated
within
the
Portuguese
and
foreign
society,
whether
by the
media,
or
through
books).
|
|
Page 08 |
|
13) Ricardo Manuel
Gonçalves
Paiva
–
colleague
and
friend
of
defendant
Gonçalo
Amaral,
he was a
member
of the
criminal
investigation
team
right
from the
very
beginning
up to
the
shelving.
He
confirmed
the
communiqué
to the
media
referred
to in
article
20 and
affirmed
that up
to this
date the
investigation
wasn't
reopened.
He
affirmed
that the
death of
the
child
was a
hypothesis
in the
investigation
and that
quite a
long
time
after
the
publication
of the
book a
"working
group"
was
created
to
review
the
investigation
and
accompany
the
solicitations
of the
UK
police.
14) Luis
Antonio
Trindade
Nunes
das
Neves
–
director
of a
national
unit of
the PJ
specialized
in
crimes
of
sequestration
crimes
with
hostages,
he is
also a
friend
of
defendant
Gonçalo
Amaral.
He took
part in
the
investigation
and
stated
that,
after
the
shelving,
information
was
still
collected
about
the
disappearance,
referring
that the
parents
were the
ones who
first
mentioned
the
child's
death
hypothesis
when
they
suggested
to send
for a
South
African
specialist,
equipped
with a
device
for
detecting
buried
bodies.
15)
Mario
Rui da
Silva
Sena
Lopes
– he was
the
edition
director
of the
defendant
Guerra&Paz
and is
the
literary
agent of
defendant
Gonçalo
Amaral.
He
stated
that the
sale
price of
the
book,
tax
included,
was
13,30 €
and that
the book
wasn't
commercialized
in
Brazil.
He
affirmed
that the
copies
were
sold
partly
under
consignation
and
partly
firmly
with
right to
returning.
He
confirmed
the
content
of
article
24 (see
above).
16) Luis
Vitorino
Torre do
Valle
Froes
–
retired,
he was
the
director
of VC
Multimédia.
He
stated
that the
DVD was
edited
by his
firm
that
only
sold it
to the
Correio
da Manhã,
this
journal
being
the one
to sell
it to
the
public.
He
claimed
that the
remaining
copies
were
destroyed,
having
stated,
confronted
with the
documents
pp.
916-1047
of the
PC and
the
documents
pp.
1841-43
that he
explained.
He
stated
that
none of
the
VC firms
(Multimédia
or
Filmes)
was
responsible
for the
diffusion
of the
documentary
on the
Web.
17)
Antonio
Paulo
Antunes
dos
Santos –
director
of an
association
for the
defence
of
audiovisual
works,
he
declared
that a
complaint
was
filed to
the
association
concerning
the
reproduction
of the
documentary
on the
Web.
Means of
evidence
for
positive
conviction
Respecting
the
positive
conviction
(that
led the
judge to
rule the
points
as
proved),
follow
the
means of
proof
especially
relevant
(referring
to the
articles
listed
in pp.
1-3)
:
Art 1.
The
conviction
results
from the
statements
of
Henrique
Machado
and
Eduardo
Dâmaso
(both
from the
Correio
da Manhã),
having
no
reason
for
doubt. |
|
Page 09 |
Art 2. The questioned price is the one mentioned in the "24
horas"
newspaper,
copied
in p.
116. The
proved
price is
the one
that
results
from the
information
given by
defendant
Guerra&Paz,
at the
requirement
of the
claimants,
in p.
1368,
attributed
to it
more
rigour
and
confirmed
by
information
from one
of the
major
booksellers,
the Fnac
– pp.
1377-1440.
Art 3, 4
and 7.
Informations
provided
by the
Fiscal
Administration
(p.
2095)
were
here
taken
into
consideration.
They
indicate
an
amount
superior
to the
sum of
the
receipts
annexed
to the
deeds,
being,
comparatively,
of
greater
credibility.
Art 6.
Was
considered
jointly
with the
document
of the
PC (pp.
1047-53),
in
particular
the
third
clause,
nb 1 of
this
contract,
and the
content
of the
information
provided
by
Presselivre
SA (p.
1047 of
the
principal
process).
Art 8.
The
conviction
resulted
from the
combination
of the
contract
reproduced
in pp.
923-24
of the
PC and
the
statement
of
witness
Luis
Froes.
Art 10.
The fact
is
sufficiently
shaped
in the
information
provided
by
Marktest
Audimetria
SA,
being
moreover
supported
in the
news –
pp.
130-32
of the
PC.
Art 13.
The
answer
to the
content
of the
articles
12 and
13 can't
abstract
itself
from the
affirmation
(considered
elementary
from the
common
experience
rules)
that,
more
than any
theory
or
opinion
about
the
causes
of the
disappearance
of
Madeleine
Beth
McCann,
the fact
of her
disappearance
overwhelms,
with
negative
effects,
the
emotional/psychological
state of
the
claimants,
her
parents.
This
negative
emotional
state
pre-exists
to the
book,
the
documentary
and the
interview
included
in this
trial
and must
not be
confused
with the
specific
psychological
consequences
of these
concrete
events
(the
matter
at stake
in this
trial).
So, if
it is
not
credible,
within
this
larger
frame
(not
even
evidence
was
brought
reaching
it),
that any
state of
(emotional)
destruction
of the
claimants
was
caused
by the
book,
the
documentary
or the
interview,
it is
also not
possible,
in light
of a
reasonable
reading
of the
statements
provided
and the
rules of
the life
experience,
to
consider
these
events
as
absolutely
neutral
or
innocuous.
From those same rules of common experience and considering
the
meaning
of the
thesis
developed
in the
book,
the
documentary
and the
interview,
the
diffusion
of this
thesis
and the
statements
provided
by Susan
Hubbard,
Alan
Pike and
Patricia
Cameron,
as well
as the
declarations
of the
claimants
in
court,
it looks
solid to
affirm,
as it is
done in
the
decision,
that the
claimants
felt, as
a
consequence
of those
events
(the
matter
that
originated
this
trial),
anger,
despair
and
anxiety.
It is
yet
supported
by
evidence
that the
claimants
experienced
worry
(for
fearing,
according
to
various
witnesses,
that the
thesis
of the
book
would
affect
the
efforts
to find
their
daughter)
and
suffered
insomnia
and lack
of
appetite
as it is
reported
in
witnesses'
statement.
|
|
Page
10 |
|
Art 14. It is not possible to assume what most people were
thinking
when
reading
or
watching
the
thesis
of
defendant
Gonçalo
Amaral
about
the
disappearance.
This
thesis
doesn't,
according
to what
is
thought,
affirm
that the
claimants
had
"responsibilities
in the
death of
their
daughter",
but
rather
that
they had
responsibilities
in the
concealment
of her
body. In
the
declarations
of
parties*
the MC
themselves
refuted
the
shame
that is
subliminal
in the
point.
This
feeling
of shame
also
doesn't
fit with
the
strong
character
that the
people
closest
to them
acknowledge
in them.
One more
time,
appealing
to
common
experience
allows
however
to
affirm
that the
claimants
feel
unease
by being
considered
as the
authors
of their
daughter's
body
concealment
and of a
simulated
abduction.
Transl.
Note
* The
new
version
of the
CPC (Código
de
Processo
Civil)
allows
claimants
and
defendants
to make
a
declaration
in
Court,
as long
as they
request
it on
time.
The main
idea is
to grant
them a
possibility
to
confess
in front
of the
judge,
since
usually
in civil
trials
only
witnesses
are
heard.
Had the
MCs
asked on
time the
judge
couldn't
refuse.
Art 15.
The fact
is also
patrimony
of
common
experience
and was
largely
corroborated
by David
Trickey's
statement.
Art 17.
The
statements
of D.
Trickey
and of
the aunt
of the
twins,
Patricia
Cameron
were
taken
into
account.
Art 18.
The
decision
results
from the
combination
of the
information
in p.
1843 and
the
statement
of Luis
Froes.
Art 19. The fact was extracted from the information
provided
by the
PJ in p.
1046.
Art 20.
Was
considered
the
content
of the
"Communiqué
for the
media",
p. 536.
Art 23.
The
statement
of Mario
Sena
Lopes
was
taken
into
account.
Art 24.
The
media
diffusion
of the
case is
a
notorious
fact and
is
patent
in the
different
extracts
of
newspapers,
blogs
and
sites
joined
to the
deeds.
The
publication
of the
referred
books
was
confirmed
specifically
by
Eduardo
Dâmaso
and
Mario
Sena
Lopes.
Art 25.
The fact
was
confirmed
by
Francisco
Moita
Flores
and is
documented
in the
deeds.
Art 27
and 28.
The
decision
concerning
this
issue
faces,
firstly,
the
problem
of the
dichotomy
between
"facts
ascertained
during
the
investigating
process"
and
"facts
that
also are
part of
the
investigating
process".
If “acts
ascertained
in the
investigation"
refers
to those
which,
with
rigour
and
according
to the
procedural-penal
dogma,
are the
result
of the
investigation
that was
achieved,
then
only one
deserves
this
qualification
– the
disappearance
of
Madeleine
McCann.
(Continuing
on p.
11) |
|
Page
11 |
(Art 27 and 28 continuing) All that is part of the investigation,
beyond
this
fact,
are
clues,
means of
evidence*,
means of
obtaining
evidence**
and
theses
or
hypotheses
that are
proper
to an
investigation
shelved
for lack
of
evidence.
It will
therefore
be
understood
that,
when are
put
together
the
“facts
ascertained
in the
investigation”
and the
“facts
that are
part of
the
investigation”,
it is
referred
to means
of
obtaining
evidence,
means of
evidence
and
clues
that
constitute
the
proper
investigation
and are
documented
in the
inquiry.
Being so, from the reading of the book and the watching of
the
documentary
it can
be
inferred
that
defendant
Gonçalo
Amaral
uses in
most of
his
affirmations
facts
that
effectively
occurred
and were
documented
in the
criminal
investigation
(in the
version
available
in these
autos).
Some of
the used
facts
aren't
complete
(for
example,
from the
statement
of
Martin
Smith –
6th
volume
of the
investigation,
p.1606 –
is
missing
(in the
book)
the part
where
the
witness
affirms
that the
person
whom he
saw
carry a
child in
his arms
didn't
do it in
a
"comfortable
way,
showing
not
being
accustomed
to it")
and
other
facts
produced
in the
book and
documentary
aren't
documented
in the
process
(v.g.
the
instructions
that GA
gave to
the
emergency
guard
when he
learnt
about
the
disappearance,
p. 37 of
the book
; the
affirmation
attributed
to the
parents
that the
flat
showed
signs of
breaking-in,
p. 44 of
the book
; the
irritation
behaviour
of Kate
MC with
the
speed of
the car,
p. 55 of
the book
; the
hypothesis
of a
reconstitution
of the
facts
discussed
in the
middle
of May,
p. 94 of
the book
; the “
informal”
identification
of
Robert
Murat by
Jane
Tanner
in p.
108 of
the
book).
Transl. note * The elements that allow to affirm the
reality
of facts
that are
pertinent
concerning
the
existence
or non
existence
of a
crime.
For
example
a
reconstruction,
a
confrontation
of two
contradictory
statements,
etc.
Transl. note ** The diligences realized by the authorities
to
gather
evidence.
For
example
phone
listening,
laptop
analysing,
etc.
Art 29.
The
decision
is based
on the
combination
of the
documents
in pp.
1819-40
of the
deeds.
Art 30.
The
contract
reproduced
in pp.
916-22
of the
PC was
referred
to.
Art 31.
The
statement
of Luis
Froes
was
taken
into
account,
in the
absence
of
evidence
to
contradict
it.
Art
32-34.
The
contract
reproduced
in pp.
1047-53
of the
PC and
Luis
Froes'
statement
were
considered
as well
as the
invoices
reproduced
in pp.
1841-42
of the
deeds.
Art 35.
The fact
is
corroborated
by the
content
of the
contract
celebrated
with
Presslivre
and
resulted
also
from
witness
evidence.
Art 36.
The
statements
of Luis
Froes
and
Antonio
dos
Santos
were
taken
into
account
being
the
facts
are
consistent
with the
common
experience.
Art 37.
The fact
is
patrimony
of
common
experience.
Elements
for
negative
conviction
The
negative
decisions
(unproved)
and the
undemonstrated
part of
the
restrictive
decisions
(those
reformulated
by the
judge to
fit to
"demonstrated
facts")
result
from the
insufficiency
of the
evidence
produced
for
reaching
a secure
conviction
or from
the
circumstance
that the
corresponding
facts
had been
refuted,
considering
the
reasons
presented
before
and
those
that now
follow :
Art 5.
Apart
from
what
appears
on p.
253 of
the PC
regarding
the
publicity
for the
book
made on
a
Brazilian
website
in the
"imported
books"
section,
no
evidence
was
brought
and the
witness
Mario
Sena
Lopes
denied
that the
defendant
had
commercialized
the book
in
Brazil.
|
|
Page
12 |
|
Art 9.
This
fact was
not
proved
and was
denied
by the
witness
Luis
Froes.
Art 11.
The
affirmation,
that is
refuted
by the
information
provided
by the
PJ in
pp.
1116-1292,
points
besides
a not
very
plausible
actuation
of that
criminal
police
organ,
contradicting
the
principle
of the
criminal
process'
notoriety.
Art 12.
It was
not
proved
that the
claimants
are
destroyed
from a
moral,
social
and
ethical
point of
view.
From the
family
point of
view,
Patricia
Cameron's
statement
reveals
a
successful
effort
of
cohesion
and
mutual
assistance.
From the
sentimental/emotional
point of
view it
is not
credible
that the
sequels
of the
facts of
these
deeds
reach
the
point of
destruction
much
beyond
the pain
already
caused
by the
disappearance
of the
claimants'
daughter.
Art 16.
It is
not
possible,
from the
perspective
of the
available
evidence,
to
discriminate
among
those
alleged
facts
those
that are
consequences
of
Madeleine's
disappearance
and
those
that
were
induced
by the
book/documentary/interview.
Art. 21.
No
documented
evidence
was
produced,
by
certificate
of the
criminal
process,
revealing
the
veracity
of that
fact.
Art 22.
The
affirmation
was
copiously
hackneyed
by
proved
facts.
End of
"a
materia
de prova".
In
law, the
proof (a
prova)
is any
means to
convince
the
judges
about
the
truth of
a fact.
"A prova"
provides
the
elements
thanks
to which
the
judges
may form
a
conviction
about
the
pertinent
facts on
which
they
will
base
their
judgement.
|
|
McCann
family
vs
Amaral
et al
Judgment
Verdict
- April
27, 2015 |
|
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