McCanns v Goncalo Amaral - Supreme Court Judgement 31 Jan 2017 - colour coded.

[Robittybob1]

Objective: To colour the text depending on the source and purpose.
"... assessment of the contents;

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

Page 45
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

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

The appellants, 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 appellants 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.

Objective: colour the text depending on the source and purpose.
"... assessment of the contents;

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


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.