Author Topic: McCanns v Goncalo Amaral - Supreme Court Judgement 31 Jan 2017 - colour coded.  (Read 829 times)

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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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Page 32
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 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'.
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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)


Pages 1 and part of 2 Introduction green
Pages 2 - 40 Taken from the first judgement. Red
Pages 40(2.2) - 44 Duartes arguments. Blue
Pages 45(2.3) - 48 Guerra & Paz response. Brown
Page 48 onwards; the judge's findings.  Black

One page per post.

Rest of page 39 Unproven Facts     Note (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,
« Last Edit: March 05, 2017, 10:55:22 AM by John »
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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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Page 41
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* 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*

”Orbe” in the original, but this is a dative case : urbi (to the city) and orbi (to the world).
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Page 44
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,

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.
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