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Decision: Judgement of Lisbon Court of Appeal on request 1454/09 - 19/04/2016


English pdf

Translation and notes by Anne Guedes

Portuguese pdf
Page 01

Judgement of Lisbon Court of Appeal on request 1454/09 - 19/04/2016

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

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

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

Dissatisfied, the three defendants made an appeal of which the allegations conclude in the following formulation:

Allegations of now appellant Gonçalo Amaral

- The book, documentary and interview involved in the autos have as main motivation the defence of Gonçalo Amaral's personal and professional honour.

- The writing and publication of the book, as the documentary and the interview mentioned, were carried out under rights constitutionally guaranteed by the ECHR (European Convention on Human Rights)  and the Portuguese Republic Constitution, accurately in articles 37 (1) and 38 (2) .

- These rights can in no way be ousted by invoking a special reserve requirement affecting the appellant on the ground that he was inspector of the judicial police, as it appears in the first instance decision.

- The respective contents (book, DVD, interview) do not offend any of the claimants' fundamental rights,

          . neither their privacy, such as articles 80 (3) and 81 (4) of the CC (Civil Code) define it and describe its effects, insofar as they themselves voluntarily limited / alienated such right by multiplying interviews and interventions in the media organs.

               . nor, in the same way, their image and reputation, as they themselves placed the matter in the public area and gave it a worldwide celebrity, opening the doors to all opinions, even opposing views.

              . nor, furthermore, all the guarantees of a criminal procedure, namely a fair investigation and the right to liberty and safety (5), as the respective contents of the book, documentary and interview describe the facts included in the investigation.

- These facts, moreover, were made ​​available to the general public by the Public Prosecutor, who ordered the making of a digital copy of the police investigation files, except for documents that cannot be turned over to the public, and the delivery of a copy to those who had requested it, as journalists.

- The fact that the content of the digital copy was disclosed on the Web, making it universally the subject of comment and public discussions, must be taken into account.

- Therefore no reserve duty can be imposed on the defendant about facts that have been disclosed and made public, particularly the whole investigation process.

Page 02

- Once the duty of reserve is non-existent, freedom of expression of the defendant comes first and prevails over the rights asserted by the claimants, as the sentence has observed before introducing the unusual duty of reserve.

- The act of the defendant in question is not unlawful under the terms and effects of article 483 of the CC (Portuguese Civil Code) (6), and he can not be ordered to pay any compensation whatsoever, and must be completely absolved of the request made by the claimants.

- No less should he be prohibited to publish, sell and disclose the book and the DVD mentioned.

- It should be noted that, in the words of the same standard, besides the absence of illicit items, would have to found the civil compensation request, provide evidence of a causal link between the defendant's conduct and damage allegedly suffered by the claimants, which, if we refer to the answers given in articles 11 to 16 of the instruction's basis, as well as to respective motivations, is totally excluded.

It has still to be taken into account the fact that the statements contained in these articles are more like conclusions and not like facts to be included in the basic education.
- These conclusions are not based on any factual element either present in the instruction's basis or reported in the claimants' exposure.

- If however, reductio ad absurdum, one would have considered as such (effective damages and deserving protection, caused somehow by the book and the DVD) the alleged contents of articles 13 to 15 of the instruction's basis - nothing else was presented as proven damage – one would say they are not true.

- To appreciate this falsehood, and to the extent that the appellant here (GA) meant that such "facts" should be overturned, it will be enough to re-evaluate the recorded testimonies of Michael Terence Wright, Alan Robert Pike and Angus Keith McBride.

- These statements show that, before the publication of the book and documentary in question and in the claimants' full knowledge, theories and arguments identical to those of the defendant circulated publicly, mainly on the Web.

- Therefore, and whilst were true the feelings given as proven in the factual matter here at stake, whether of rage, despair, anxiety, unrest or worry, particularly concerning what the (MC) children might be led to believe, the truth is that the reason for all this existed before any intervention on the part of the defendant, here appellant.

- The same can be said with regard to insomnia and lack of appetite.

- The Court must take into account the fact that those witnesses are close to the claimants (family member, psychologist and lawyer) and that, notoriously, they always end up their statements by trying to underestimate the theses anterior to the book and documentary and, of course, to overemphasize the  impact of the latter on the mindset of the claimants.

- Particularly in the case of the witness M.T. Wright, who was assigned to support the claimants after the disappearance of the minor MMC, in the promotion of awareness campaigns and monitoring of certain sites and information conveyed by the web.

- The witness who, as part of the summary and critical analysis of key witness testimony was discredited by the Court (and rightly so) for consulting handwritten notes including, in order and in an almost perfect chronological sequence, topical replies to questions put to him during the final hearing.

- But the statements of this witness, when he admits, obviously upset, that long before the publication of the book and the documentary, theses opposed to the MC were circulating - against the defendant / appellant - deserve, on the contrary, special consideration.

- All this without renouncing to say we do not understand why, in relation to these facts, here refuted, the (first instance) Court did not, in its sentence, decided to declare them as unproven, whereas, as can be seen in the motivation related to the response to article 13 of the instruction's basis, it (the Tribunal) specifically found:

"Art 13 ° -. The response to the content of Articles 12 and 13 can not dispense with the assertion (judged elementary according to rules of common experience) that, more than any theory or opinion on the causes of the disappearance of MMC, the fact of her disappearance dominates, with negative effects on the emotional / psychological state of the claimants, her parents. This negative emotional state is pre-existent to the book, the documentary and the interview mentioned in the lawsuit and should not be mixed up with the psychological consequences specific to these concrete events. "

- Therefore, by deciding in the sense that it decided, the appealed sentence ran the risk of flagrant unconstitutionality by substantial violation of article 37 of the CRP (Constitution of the Portuguese Republic) (1) and article 10 of the ECHR (European Convention on Human Rights) (7), frontally counteracting the prevailing jurisprudence of the European Court of Human Rights in this area.

- The conditions are not met for the condemnation at stake neither as to the existence and the application of any right of the claimants, nor for serious prejudices and/or threat of prejudices, even if (those conditions) existed - and they do not exist – they never could outweigh the right to opinion and freedom of expression of the defendant.

- In addition, the appealed sentence violates the article 483 of the CC (6), insofar as no evidence of damage to the claimants resulted  from the acts of the appellant (GA).

- It follows that the sentence on appeal must be broken, being deemed totally unjustified to the extent that the action is not proven, with the consequent release of the defendant in relation to all the demands made against him and recognizing him the constitutional right to opinion and freedom of expression.

Page 03

Allegations of now appellants Guerra e Paz Publishers and Valentim de Carvalho Films

- 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. 

- As it is undisputed that the claimants 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 or comments, even on publicly known facts, when they feel those might be unfavourable. 

- 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 (3)

- The current autos are made up of two autonomous actions: a declarative condemnation action brought against the defendant GA, asking, in particular, that he'd be ordered to pay the applicants compensation in the amount of 1.200.000 euros; and an appendix action in which, based on the same facts and grounds, the applicants requested that various defendants would be condemned in respect of the behaviour mentioned in points 1 to VII of the sentence.

- The appealed sentence considers it relevant to analyse whether the book written by the co-defendant GA, documentary and interview are illegal / anti-juridical under the terms of article 484 of the CC (8), whether there is damage, what is the amount of compensation and whether the claims made in the appendix lawsuit are adequate to the withdrawal of the committed illicit effects. 

- The appellants consider that it does not belong to them to defend the co-defendant GA, but the way the sentence is constructed obliges them to. 

- The author of the book Maddie, the Truth of the Lie, co-defendant GA, was investigator in the criminal investigation into the disappearance of MMC, having been the object of personal and professional attacks by the claimants, in the national and in the foreign press. 

- It follows that the book should be analysed as a legitimate exercise of the co-defendant GA in defence of his honour and reputation undermined by the claimants.

- Point 43 of the proven facts, in the appealed sentence, refers to a statement of the appellant VCF (Valentim de Carvalho Filmes): The mystery continues, the former inspector thinks that one day the truth will be known. Meanwhile we only know that on 3 May 2007 MMC has disappeared in Praia da Luz. She was 3 years old and was a happy child.

- The appealed sentence analyses the duties of reserve required from a police officer, but these duties only apply to serving officers, which was not the case for co-defendant GA.

- However, without disregard, breach of the duty of confidentiality is not capable of offending the reputation of claimants, because the juridical power that protects them is the administration of justice.

- The appealed decision has documented that the illegality of the co-defendant GA's conduct is revealed in the kind of resolution of the indicated conflict between rights, according to the effects of article 484 of the CC (8), which is not surprising. 

- Under article 334 of the CC (9), the exercise of a right is only illegitimate when the holder manifestly exceeds the bounds of good-faith, which was not the case.

- The collision of rights must be resolved in accordance with the assumptions provided in article 335 of the CC (10) and cannot, through its resolution, assess the illegitimacy of a conduct. 

- It follows that the appealed sentence does not actually mention any illicit fact practised by the co-defendant GA, which turns it null, under article 615-1-d) of the CPC (Civil Procedure Code) (11)

- The same can be said of the remaining assumptions, listed in article 483 of the CC (6), which have not been analysed regarding the co-defendant GA, when even less analysed was the causal link between the statements of the co-defendant GA in the book and the documentary and the damage that the applicants are deemed to have suffered, since all were dispersed in time.

- It was not evaluated if the damage that the applicants are supposed to have suffered results directly and necessarily from the statements of the co-defendant GA in the book and the documentary and not from the facts stated therein, i.e the disappearance of MMC, the constitution of her parents as official suspects (arguidos) and their being the subject of negative news for that reason, nationally and internationally.

- These facts being public and notorious, they don't lack argument or proof, under the terms of article 412-1 of the CPC (12), but even so they were alleged by the applicants.

- Facing the facts given as unproven on j) and k) and the value that the courts attribute to the death damage, it is unfair to award compensation of the value requested by the applicants, be it from the point of view of the economic situation of the injured party and the injuring one.

- Only in the fourth part of the award are listed the various requests made by the claimants in the appendix action.

Page 04

- At stake in the present autos is the book Maddie, the Truth of the Lie written by the co-defendant GA and published by the appellant Guerra & Paz - points 16-22 proven facts. The publishing contract was celebrated with the appellant GA on 10/3/2008, the book being published on the 24/7 of the same year.

- The appellant VCF celebrated with the co-defendant GA a written agreement, referred to as "rights option - deal memo", on 7/3/2008, for the audiovisual adaptation of a book about the investigation on the disappearance of MMC in PDL - point 35 of the proven facts of the sentence on appeal,  embodied in the terms and dates mentioned in paragraphs 36 to 38 of the proven facts.

- According to the terms of article 5-1 of the CPC (13), the allegations about the essential facts constituting the cause of the request belong to the parties, but the judge is not subject to the allegations of the parties about the investigation, interpretation and application of the rules according to what is stipulated by 5-3

- The initial application that gave rise to the present action in respect of the appellants, does not contain facts that meet the assumptions listed in article 70-2 of the CC (14).

- Such a legal framework provides that the threatened or offended person may require appropriate measures to the circumstances of the case, to avoid the execution of the threat or mitigate the effects of the offence already committed.

- The book in question was published by other publishers in various countries - point 28 of the proven facts. 

- Among the proven facts, an English and a Portuguese versions of the book circulate on the Web, without the authorisation of the appellants. 

- On the other hand, the Portimão Public Prosecutor commissioned a digital copy of the investigation file and handed it out upon request, which ended up being disclosed on the Web - points 65 and 66 proven facts.

- The facts relating to the criminal investigation into the disappearance of MMC to which GA  refers in the book, in the interview for the newspaper Correio da Manha and in the documentary are, mostly, the facts that occurred and are documented in the investigation (articles 27 and 28 of the instruction basis) - article 80 of the proven facts. 

-In other words, despite the bans issued and without the appellants’ ability to avoid it, the book in Portuguese and English versions, as with the documentary, circulate on the Web illegally and against the will of the holders of copy and transmission rights, as well as every record of the criminal investigation into the disappearance of MMC.. 

- It was considered not proven that, due to the defendant GA's assertions in the book, documentary and interview with Correio da Manha, the claimants are completely destroyed from moral, social, ethical, sentimental, family points of view, far beyond the pain caused by the absence of their daughter - point j) of unproven facts in the appealed sentence. 

- Finally, for the purposes of the requested measures, the appealed sentence held that the three defendants functioned as vehicles of the illicit act committed by the defendant GA, so they were passive subjects of measures which, under article 70-2 of the CC (14), must be ordered, indicating that it is important to analyse in detail each of these responses and checking, case by case, if they are legal, appropriate and proportionate to the actual case and to find out who are the recipients. 

- What is sure is that the appealed sentence has not analysed them nor given them a basis in fact or law, in accordance with the provisions of article 158 of the CPC (15), which turns the sentence null under the terms of article 615-1b) of the CPC (11)

- And so, without any foundation, it was determined that the prohibition of sale and the order of collecting the books to be handed to the claimants embody the cited attributes and should be addressed to the defendants GA and Guerra & Paz.

- The ban on new editions of the book or the DVD, such as the cession of publishing and copy rights is adequate and must be addressed to GA and the defendants.

- Now, in the specific case, following the injunction, which determined some of the measures now decreed, it was considered that "the book should not be apprehended through an injunction, its main motivation being the defence of the personal reputation of the police inspector in charge of investigating a particular crime who expresses herein his interpretation of the data collected during the investigation and made public by the competent entities, considering as certain that the claimants had voluntarily limited their right to privacy when they profusely spread the case through the media"- www. (14.10.2010 Appeal judgement) (16) 

- Faced with these facts given as proven in paragraphs 30 and 63, the measures enacted are inadequate and do not attenuate the effects of the alleged offence.

- Establishing the obligatory financial penalty to €50.000 is also without foundation and is excessive and disproportionate.

Page 05

- The  judgement is suffering from nullity under the scope of paragraphs b) and d) of art. 615-1 of the CPC (11) and should be revoked, appellants to be acquitted of measures decreed, with all the legal consequences. 

- And because the issued decision violated namely the articles 37(1), 38 (2) and 42 (17) of the CRP, 5 (13), 158 (15) and 615 (11) of the CPC, 334 (9) and 335 (10) of the CC and the article 19 of the Declaration of Human Rights (18)

Counter-alleging , the respondents decided on confirming the first instance judgement.

Gathered legal visas, decision is required.

2. In the first instance, the following facts were given as proven : 

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

2. The applicant Madeleine McCann was born on 12.5.2003 , daughter of KMC and GMC (al.B).

3. The applicant Sean McCann was born on 1/2/2005, son of KMC and GMC (al.C).

4. The applicant Amelie McCann was born on 1/2/2005 , daughter of KMC and GMC (al.D).

5. The applicant MMC has been missing since 3/5/2007 , resulting in the criminal investigation No. 201 / 07.0GALGS, opened by the prosecutor of Portimao (al.E).

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

7. The dogs Eddie and Keela, from the British police, have detected human blood and cadaver scent in the vehicle rented by the applicants KMC and GMC after Madeleine's disappearance (al.AS).

8. The applicants KMC and GMC were constituted (by lawyer) assisted witnesses (arguidos) in the criminal investigation (al.F).

9. Pages 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 (page 2599) (... )

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


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

B) A simulation of abduction took place ;

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

D) Kate and Gerald McCann are involved in the concealment of the body of their daughter MMC;
E) On this date it seems there is no solid evidence that the death of the minor was not due to a tragic accident;

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

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

G) A possible new interrogation of assisted witnesses KMC and GMC;

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


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

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

Page 06

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 Investigation (al.AU)."  

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

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

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

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

-        14. On 21/7/2008, the General Prosecution of the Republic 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 (art. 20).

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

"Taking into account that certain points in the assisted witnesses' (arguidos) and witnesses' statements revealed, at least apparently, contradiction or lacked physical confirmation, it was decided to carry out the "reconstitution of the fact", a diligence that is consecrated in article 150 of the Penal Process Code (19) in the sense of duly clarifying, on the very location of the facts , the following very important details, among others : 

1) The physical, real and effective proximity between Jane Tanner, Gerald McCann and Jeremy Wilkins, at the moment when the first person walked by them, and which coincided with the sighting of the supposed suspect, carrying a child. From our perspective it is strange that neither Gerald McCann nor Jeremy Wilkins saw her, or the alleged abductor, despite the exiguity of the space and the tranquillity of the area. 

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

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

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

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

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

Nevertheless, despite national authorities assuming all measures to render their trip to Portugal viable, for unknown reasons, after the many doubts that they raised about the necessity and opportunity of their trip were clarified several times, witnesses chose not to attend, which made the reconstitution impractical.

Page 07

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

This (20) shows that the parents were not persistently worried about their children [and] that they didn't check on them like they afterwards declared they did, rather neglecting their duty to protect those same children, although not in a temerarious, or gross, manner (...)

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

Concerning the other surmised crimes (21), they are no more than that and in spite of our perception that, due to its high degree of probability, the occurrence of a homicide cannot be discarded, such cannot be more than a mere supposition, due to the lack of supporting elements in the files.

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

To this should be added that in fact none of the clues that led to their constitution as assisted witnesses was later confirmed or consolidated. Let's judge it: the information concerning a previous alert of the media before the police was not confirmed, the residues that were marked by the dogs were not corroborated in laboratory, and the initial indications from the above transcribed email (22), better examined afterwards, that ended up appearing to be inconclusive. 

Even if hypothesising that Gerald and Kate McCann might be responsible over the child's death, it would still have to be explained how, where, when, with what means, with whose help and where to they freed themselves of her body within the restricted time frame that would have been available for them to do so. Their daily routine, until the 3rd of May, had been circumscribed to the narrow borders of the Ocean Club resort and to the beach next to it, unknowing the surrounding and, apart from the English friends that were with them on holiday, they had no known friends or contacts in Portugal (…)

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

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

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

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

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

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

"The remuneration to be paid by the first contractor to the second contractor, for copyrights associated with editions of his book commercialised in Portugal, will be :

a) 12 % of the selling price for each copy sold (VAT excluded) up to 30.000 copies

b) 14 % of the selling price for each copy sold (VAT excluded) from 30.001 to 50.000 copies

c) 16% of the selling price for each copy sold (VAT excluded) from 50.001 on" ( Al.N) . 

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

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

Page 08

- 20. The defendant Gonçalo Amaral is the author of the book Maddie - A Verdade da Mentira, published by the defendant Guerra e Paz Editors, SA. (al.H)

- 21. On the cover of the book stands, in red, the word "confidential" and on the 4th cover it reads "Reserved read" and "contains unique revelations". (al.P) 

- 22. On the data sheet of the book, on page 4, Figure especially this: "Review: Fernanda Abreu. Cover and pagination : Ilidio J.B. Vasco. Photography author : Sandra Sousa Santos © Guerra e Paz, Editores, SA. 2008. All rights reserved. © Cofina media for photographs and infoengraving, developed by Nuno Costa." (al.Q) 

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

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

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

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

This book has yet another major objective. That of contributing to the discovery of material truth so that justice is done in an investigation known as The Maddie Case. These are the fundamental values to which I subscribed by imperative of conscience, conviction and discipline regarding the institution to which I was proud to belong. My retirement will not extinguish these values, they'll go on being present in my life.

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

A criminal investigation compromises only with the search for material truth. It should not be concerned about political correctness. (pp. 11-12) (…)

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

- Do not pay attention. It's carnival.

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

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

An investigation  destined for shelving

I have a feeling that with this statement, the national director intends to prepare the public opinion for the inevitable, i.e for the end of the investigation and the shelving of the case. That seemed to be the strategy adopted on 2 October 2007, which was consolidated with the execution of tasks to fulfil the calendar, a bit  "for the English see"
(23) I feared immediately for the present investigation to be questioned so as to facilitate a possible shelving. This investigation had come to undermine the image of the PJ, its inspectors and Portugal, and that's why perhaps it had to be discontinued.

The constitution of Kate Healy and Gerald McCann, Madeleine's parents, as arguidos (by lawyer assisted witnesses) should have marked a turnaround in the relationship among the police forces and the couple. If, on the Portuguese police side, the break occurred, it seems that the same cannot be said of the English police. There was an agreement between the two police forces to move forward in an investigation that was seriously considering the possibility that the child died in the apartment, but suddenly the English police veered without consistent technical explanation - as we shall see further.

Page 09

We have always found it odd the way the couple were treated, even after they got their arguido status, and their eventual access to police information.

I see the mentally investigation, the memories gush cascaded.

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

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

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

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

The caution of a decision 

At Portimao I meet Chief Inspector Tavares de Almeida, who was part of the team which I coordinated. We have known each other since we entered the PJ. The words of the national director worry him, he speaks of an investigation request, already filed with the national director of the PJ. He says the investigation of our work will restore the truth.

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

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

- Look ! These people (24), do they know how to sum things up ? How can one speak of precipitation when the McCann became assisted witnesses four months after the facts ? Do not they know the principle of non-self-incrimination ?

He was referring to the legal prohibition to take the testimony of a person as a witness (26) to the point where that person might let know facts that would eventually incriminate them. In other words, when someone is about to make statements on a specific case and when, at some point, it appears that this person might be involved or responsible for the practice of an unlawful act, this person has to be made arguido (a). So are preserved the rights and duties of citizens. Curiously, and contrary to what we see very often in the press, especially in the English media, the arguido status protects the (by lawyer) assisted witnesses, since they can keep silent and thus avoid making false statements - as in the case of a simple witness.

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

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

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

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

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

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

- There is much talk of governmentalization of justice ... we forget how influence can affect any criminal investigation can be influenced...
Page 10

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

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

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

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

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

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

Fraud or breach of trust ?

During a relaxation moment in one of these meetings (27), I would have committed a gaffe or, who knows, been inconvenient and undiplomatic. Concerned with the possibility that the McCann couple might be, in one way or another, involved in the disappearance of their daughter, and as I reckoned the types of crimes that could be imputed to them, a fact came to my mind. Were the responsibility of McCann actually confirmed, then the crime of fraud or breach of trust concerning the fund created to search for Madeleine, 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 unfound body, an ascertainment confirmed by the English EVRD and CSI dogs and corroborated by laboratory's preliminary reports (pp.219-220)." (al.I)

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 Ocean Club Vila, 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 )". ( al.J ) 

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


26. On the launch day (24/07/2008), the book was also sold with the newspaper Correio da Manha. ( Al.S )

Page 11

27. The book Maddie , the Truth of the Lie 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 [al.T)


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 [al.U)


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


30. Copies of an English and Portuguese version circulate in the internet without the authorisation of Guerra e Paz, Editores SA. [al.X)


31. The cover price of the book Maddie - the Truth of the Lie in Portugal was determined by the defendant Guerra&Paz on the amount of 13.33 € VAT included (art. 2º).


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 (art.23°)


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


34. The defendant, VC-Valentim de Carvalho is a commercial society that creates, develops, produces and promotes the exhibition and broadcast of cinematographic and audiovisual works.(al.AA)


35. On the 7th March 2008, the defendant Gonçalo Amaral and the defendant Valentim de Carvalho signed a written agreement (pp. 282-283) designated concession of rights - 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. (al.AB)


36. On the 11th March 2008, the defendant GA and the defendant Valentin de Carvalho signed a written agreement (pp. 284-288) , designated “Transfer of rights-Option contract” through which the defendant GA gave up to the defendant VC 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. (al.AC)


37. Clause 2 of this agreement states the following: By the transfer of these exclusive right of option, VCFilmes compromises to pay the author the gross sum of 25.000, subject to legal fees and added VAT. (al.AD)


38. According to clause 4, and concerning the adaptation of the book into documentary, the author is obliged to participate as a narrator, transferring all image and sound rights. 2 For that participation and transfer of all the patrimonial content of author rights to VCFilmes 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. (al.AE)


39. On 6/06/2008, the defendant VC-Filmes, Audiovisuais, SA agreed with VC-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. (art. 30°) 

Page 12

40. The defendant VC produced the documentary Maddie , The Truth of the Lie , produced by Carlos Coelho da Silva , which is an adaptation of the book written by the defendant GA. This documentary, in DVD format, is appended  to the files. (al.AF)

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. (al.AG)


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. (al.AH) 

43. The defendant, Valentin de Carvalho–filmes 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. (al.AL)  

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 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. (art.29°)

45. On April 13, 2009 and May 12, 2009 the documentary was broadcast by the defendant TVI-Televisao Independente SA. (al.AJ)

46. Before the documentary’s broadcast, the defendant TVI-Televisao 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.  (al.AL)  

47. At least two million and two hundred thousand people watched the program broadcast on TVI 13.04.2009. (art. 10°).

48. The defendant Goncalo Amaral gave to the newspaper Correio da Manha an interview, conducted by the journalists Eduardo Damaso 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 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?

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 ?

Page 13

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 state 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.  

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. (al.Z) 

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

50. The defendant Gonçalo Amaral gave interviews to the defendant TVI-Televisao Independente SA on the 16.05. and the 27.05.2009. (al.M)

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 “ The Truth of the Lie” by Gonçalo Amaral. (al.AN)

52. The above mentioned DVD was edited and the edited copies were traded by Valentim de Carvalho Multimédia SA through agreement with Presselivre, Imprensa Livre SA. (art.8°)

53. 75.000 copies of the DVD were distributed for sale. (al.AO)

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

55. On the video cover the word “confidential” is written in red. (al.AP)

56. The DVD was sold by Presselivre, Imprensa Livre SA as an insert with the newspaper owned by the same company Correio da Manha at the price of € 6,95 (six euros and ninety five cents, VAT included). (art.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. (art.31°)

58. Reproduction and editing of the video documentary format was authorised by Valentim de Carvalho Multimedia , S.A. to Presselivre company , Free Press , S.A. , which owns the newspaper Correio da Manha, according to the agreement between both established. (art.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, to be distributed and commercialised jointly with the newspaper Correio da Manha. (art.33°)

60. And the whole process of registration and classification of the video (DVD) edition of the documentary with the IGAC (28) would be, and it was, developed by VCMultimédia, being Presselivre that would support the costs, and it did. ( art. 34°)

61. The DVD of the documentary was distributed for sale together with the distribution for sale of the newspaper Correio da Manha. (art.35°)

62. The defendant Gonçalo Amaral earned by selling the DVD, in 2008, the amount of €40.000. (art.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 VC-Valentim de Carvalho-Filmes, Audiovisuais, SA. (art.36°)

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

65. The Republic Prosecutor Office in Portimao 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. (al.AX)

Page 14

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

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

68. The claimants KMC and GMC gave an interview to the North-American TV program Oprah hosted by Oprah Winfrey, revealing the existence of new witnesses, reconstructions (1) and e-fits. (al.BB)

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

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

71. The claimants KMC and GMC, in collaboration with the British television station Channel 4, made ​​a documentary about the disappearance of their daughter, entitled Still missing Madeleine, lasting 60 '. (al.BE)

72. On 15.04.2009, the defendant TVI-Televisao Independente, SA signed a license preliminary agreement for broadcasting, exclusively in Portugal, the documentary SMM for 35,000 €. (al.BF)

73. The claimants KMC and GMC asked that the license for broadcasting the documentary SMM would not be attributed to the defendant TVI-Televisao Independente, SA. (al.BG)

74. The documentary SMM, translated Maddie, Two Years of Anguish, was broadcast by SIC on 12.05.2009. (al.BH)

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. (al.BI)

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 Goncalo Amaral from investigations that were developed under his coordination. (al.BJ)

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

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 Cristovao, Manuel Catarino and Hernani Carvalho. (art. 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. (art. 25°)

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

81. As a result of the defendant Goncalo 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 (art. 13°)

82. The same claimants feel unease because they are considered by people who believe in Goncalo 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. (art.13°)

82. The same claimants feel unease because they are considered by people who believe in Goncalo 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. (art.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. (art.15°)

84. Sean and Amelie McCann entered the school in August 2010 without knowledge of the defendant's thesis referred to above. (art.17°) 

3. Under art. 635-4 (30) and 639-1 (31) of the CPC, the matter of the appeal is delimited by the appellant’s conclusions.

The question subject to decision is essentially centred on the evaluation of the alleged illicit act and the 1st defendant’s (here appellant) responsibility ensuing from it in the publication, by the 2nd and the 3rd defendants, here equally appellants, of the works at stake.

Page 15

In terms of personality rights (32), article 26-1 (33) of the CRP states that the rights to a person’s good name and reputation are recognised, as well as protection of the intimacy of private and family life..

The same fundamental law protects with equal dignity freedom of expression, stating in article 37-1 (1) that everyone has the right to freely express and disclose their thought through speech, via image or by any other means, as well as the right to inform, to look for information and to be informed without hindrance or discrimination.

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

Article 18-2 (34) establishes, in the event of a conflict between fundamental rights, that legal restrictions on these rights are limited to the need of preserving other constitutionally protected rights or interests.

For its part, the ordinary law enshrines in article 70 of the CC (14), as a principle, that the law protects individuals against unlawful offence or threat of offence to their physical or moral integrity, while according to article 80 of the CC (3) everyone must maintain discretion about someone else’s intimacy of private life.

In case of conflict of equal rights or of the same species, the holders of these rights must, in terms of article 335-1 (10), assign to the extent necessary for all rights to take effect without major damage for any of them. Article 335-2 (10) states that, all rights being uneven or of different species, prevails the one considered higher

Thus, as the dominant jurisprudence understands :

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

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

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

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

Criticising implies banning, censorship conveyed by the media only stops being legitimate as a manifestation of individual freedom when it expresses objective anti-juridicity, violating the most personal rights and affecting, more or less lastingly according to people's memory, values which must be preserved as the rights here at stake to honour, good name and social reputation. (ruling of the STJ (Supreme Court of Justice) dated 20/01/2010, (35)

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

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

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

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

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

By this kind of proceeding, they opened the way for anyone to equally express their opinion on the case, contradicting their theory – exercising, doing so, a legitimate and constitutionally sanctioned right to opinion and freedom of expression of their thoughts.

Page 16

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

Nothing prevents that, although they were not considered sufficient to elicit criminal charges, such facts are subject to various assessments, especially in a literary kind of work.

Therefore, and as rights are enshrined namely in articles 37 (1) and 38 (2) of the Constitution, the publication in question has to be considered legitimate. . 

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

Under such terms, and despite the personal reasons given in the prologue of the book, the appellant, in case of collision with the rights to good name and reputation of the respondents, would not enjoy the full and complete freedom of expression concerning the investigation's conclusions, his conduct being deemed unlawful under Article 484 of the CC.  (8)

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

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

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

Given what has been discussed above, it is judged appropriate, in agreement with both appeals, to revoke the decision on appeal and, considering the action against them unjustified, to acquit the defendants-appellants of all the requests. Costs for both instances are to be paid by the claimants- respondent party.




(1) Art 37 of the CRP (Portuguese Republic Constitution) : Freedom of expression and information

1. Everyone has the right to freely express and disseminate his thoughts by words, images or by any other means, as well as the right to inform, to seek information and be informed without hindrance or discrimination.
2. The exercise of these rights can not be prevented or restricted by any type or form of censorship.
3. Offences committed in the exercise of these rights are subject to the general principles of criminal law or breach of administrative order, and its appreciation belongs under the law respectively to the courts of law or to independent administrative entities.
4. To all persons, singular or collective, is ensured in conditions of equality and effectiveness, the right of reply and rectification and the right to compensation for damages.

(2) Art 38 of the CRP : Freedom of the press and media
1. Freedom of the press is guaranteed.
2. Freedom of the press implies:
a) The freedom of expression and creativity for journalists and collaborators, as well as the intervention of the first in the editorial direction to their respective media organ, except for doctrinal or confessional types ;
b) The right for journalists, under the law, of access to sources of information and of protection of their professional independence and secrecy, as well as the right to elect editorial boards ;
c) The right to found newspapers and other publications, regardless of administrative authorisation, deposit or pre-qualification.
3. In general terms, the disclosure of the ownership and funding arrangements of the media organs is required by law.
4. The State shall guarantee the freedom and independence of media from political and economic power by imposing the speciality principle upon companies that own general information media, treating them and supporting them in a non-discriminatory manner and prevent their concentration, in particular through multiple or crossing participations.
5. The State shall guarantee the existence and operation of a public service of radio and television.
6. The structure and functioning of the media in the public sector must safeguard its independence from the Government, the Administration and other public authorities, and to ensure the possibility of expression and confrontation of different currents of opinion.
7. The law requires that the broadcasting Radio stations and TV channels only operate under license, submitted to public competitive examination
(3)Article 80 of the CC (Portuguese Civil Code) : Reserve right concerning private life
1. Everyone should keep reserve on the privacy of someone else's life.
2. The reserve extension is defined according to the nature of the event and the condition of the persons.
(4)Article 81 : Voluntary of the CC  limitation of personal rights
1. Any voluntary limitation on the exercise of personal rights is null, if it is contrary to the principles of public order.
2. The voluntary limitation, when legal, is always revocable, although with the obligation to compensate the damage caused to the legitimate expectations of the other party.
(5) It might be useful to discriminate between "safety" and "security", two different notions that are often mixed up.

"Security" refers to all the elements in place to prevent accidental, thus involuntary, events whereas "safety" refers to malicious, thus voluntary acts. For instance the prohibition of using electronic devices when a plane takes off is a security measure, whereas the prohibition of blades on board is a safety one.

(6) Art. 483 of the Civil Code - General principle

1. Any person who , intentionally or recklessly , unlawfully violates the rights of others or any legal provision intended to protect others' interests is obliged to compensate the injured party for damages resulting from the breach.

2. Paying damages, regardless of fault, is only required in the cases specified by law.


(7) Art. 10 on ECHR  (European Convention on Human Rights) – Freedom of expression

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

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

(8) Art. 484 of the CC - Offense to credit or good name
Who affirms or spreads a fact capable of harming the credit or good name of any person, individual or collective, is liable for damages.
(9) Art. 334 of the CC - Abuse of rights
The exercise of a right is illegitimate, when the holder obviously exceed the limits imposed by good faith, habits and customs and the social or economic purpose of that right
(10) Art. 335 of the CC - Rights' collision

1. If there is a collision of rights, equal or of the same kind, holders should give in to the extent necessary for all right to produce their effects without further detriment to either party.

2. If the rights are unequal or of different kind the one that must be considered superior prevails.

(11) Art. 615 – Grounds for judgement's invalidity

1. The judgement is null when :

a) it does not contain the signature of the judge.

b) it does not specify the fundamentals of fact and law that justify the decision.

c) the fundamentals are in opposition with the decision or some ambiguity or abstruseness makes the decision unintelligible.

d) The judge does not come down for matters that he should appreciate or knows of issues that he could not have taken notice.

e) The judge condemns in superior quantity or on different object compared to what has been claimed.

f) The determination of responsibility for the costs, in the terms of article 659-4, is omitted.

2. The omission referred to in 1.a) is supplemented unofficially or at the request of either party, when it is possible to collect the signature of the judge who issued the sentence, the judge having to declare in the trial the date on which he signed.

3.When the document is electronically signed, there is no need to make the declaration provided in 2.

4. Nullities mentioned in 1.b) to e) may only be invoked before the Court that issued the judgement if this one admits no ordinary appeal, the appeal being able, otherwise, to have any of these nullities as fundamental.

(12) Art. 412 of the CPC - Facts that do not require either proof or allegation
1 - Well-known facts don't require evidence or allegation, they, facts of general knowledge having to be considered as such.
(13) Art. 5 of the CPC - Declarative Action

1 - Without prejudice to the following paragraphs, the Civil Procedure Code, approved in annex to this law, is immediately applicable to pending declarative actions.

2. The rules on determining the form of the assessment procedure shall apply only to actions brought after the entry into force of the CPC, approved in annex to this law.

3 - The rules governing the procedural acts of the phase of the pleadings shall not apply to actions pending the entry into force of the CPC, approved in annex to this law.

4 - In the actions that, at the date of the entry into force of this law, are in the stage of pleadings, the parties should, completed this stage, be notified to, within 15 days, submit evidentiary requirements or amend those presented, followed by other terms provided for in the CPC, adopted in annex to this law.

5 - In the pending actions in which, at the date of entry into force of this law, the intervention of the collective court has already be allowed, the judgment is made by the court, in the terms at the date of admission.

6 - Until the entry into force of the Judiciary System Organization Act, i circle judge the responsibility for preparation and trial of actions of value greater than the scope of the Appeal Court after the entry into force of the CPC, approved in annex to this law, except in cases where the CPC, approved by dispatch n°. 44,129, of December 28, 1961, excluded the intervention of the collective court.

(14) Art. 70 of the CC - General Protection of personality
2. Regardless of liability that may arise , a threatened or offended person may require measures appropriate to the circumstances, in order to prevent the consummation of the threat or to soften the effects of the offense already committed.
(15) Art. 158 of the CPC - Territorial scope for the practice of secretariat duties

1. The officials of the secretariats of the Supreme Court of Justice, the Court of Appeal and any other court can directly perform the acts assigned to them throughout the jurisdiction of the respective court area when it is greater than the area jurisdiction in which the court is inserted.

2 - In the cases provided for in the rules on judicial organization, competence for the practice of secretariat duties may cover the area from other judicial districts.

(16) I couldn't find it there, though...

(17) Art. 42 of the CRP- Freedom of cultural originality

1. Intellectual, artistic and scientific originality shall not be restricted.

2. This freedom includes the right to originate, produce and disseminate scientific, literary or artistic works, and includes legal protection for copyright.

(18) Art.19 of the UDHR (Universal Declaration of Human Rights)

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.


(19) Article 150 of the CCP - From the reconstruction of the facts - pre -conditions and procedure

1. When the need arises to determine whether the facts could have taken place in a certain way , it is admissible to conduct their reconstitution. This is to replicate as closely as possible, the conditions under which the incident occurred or are alleged to have occurred , and to repeat the way they are made .

2. The decree ordering the reconstruction of the facts must contain a brief indication of the objective pursued , the day , time and place will unfold the reconstitution procedure and how it will take place , using possibly to audio - visual means. The Order may appoint an expert for the execution of specific operations .

3. All advertising about this initiative should be avoided wherever possible.

(20) The fact that, according to PF, a child, possibly Madeleine, had cried during more than an hour on May 1st night.
(21) "Other crimes" here designates "crimes that are not of neglect".

(22) This is the preliminary DNA analysis by the FSS of the samples collected in the car hired by the McCanns.

(23) It is show off to make believe that things function while they don't.
(24) One could imagine that GA is referring to the unfortunate words (the British police was following the MC instead of maintaining a critical distance) that motivated, matter of diplomacy, his dismissal of the case by the national director of the PJ, Alípio Ribeiro, but no, he evokes the suggestion of precipitate arguido status made by the latter to the journalist of the daily Público ( 02/02/2008 ), 4 months later.
(25) See (24)
(26) Please note that the McCanns, from the first day, were "victims" and not "witnesses". Their status has moved from "victim" to "(by lawyer) assisted witness" .
(27) GA refers to meetings with British officers, who had come to help the PJ and/or support the McCanns, one of them being Stuart Prior, Detective Superintendent of the Leicestershire Constabulary (now Police), whom GA describes as particularly tense while the interrogations during which the McCanns would be made arguidos were imminent.
(28) Inspecção-Geral das Actividades Culturais (General Inspection of Cultural Activities)
(29) Note that what the claimants did was a reconstruction, and not a reconstitution, quite a different process, previewed and defined in the Portuguese CPC (and more generally performed in any Inquisitorial System), which aims to understand how the event happened. What the Public Ministry requested from the Tapas 9 was a reconstitution, it could by no way use actors, as its purpose wasn't to jog memories as the Common Law (or Adversarial System) reconstruction does.
(30) Art. 635 of the CPC – Subjective and objective delimitation of the appeal
4. In the conclusions of the allegation, the appellant may restrict, expressly or tacitly, the initial object of the appeal.
(31) Art. 639 of the CPC – Burden of claim and conclusions wording
1. The appellant shall submit his allegation and conclude, in summary form, by stating the grounds for requesting the amendment or annulment of the decision.
(32) "Personality" refers to the individual, i.e the combination of a person's aspects that distinguish them from all individuals of the past, the present and the future.
(33) Art. 26 of the CRP - Other personal rights
1. Everyone is recognised as having the right to his or her personal identity, civil capacity, citizenship, good name and reputation, and likeness, the right to speak out and the right to the protection of the privacy of his or her personal and family life.
(34) Art. 18 of the CRP - Legal application
2. Rights, freedoms and guarantees may be restricted by law in only those cases expressly provided for in this Constitution; restrictions shall be limited to the extent necessary to safeguard other rights or interests protected by this Constitution.
(35) The exact link is

This ruling of the Supreme Court of Justice is referred more than one time in this appeal judgement and is worth reading since freedom of opinion and right to good name are involved. A, a journalist, sued B for defamation, demanding a symbolic 1€. B riposted demanding €2.500 plus interests for damages caused by A suing him (B would give the sum to charity). The first instance ruled in favour of B. A appealed and won. B went to the SCJ and lost again.

The fore-mentioned extract of the ruling's is followed by this note that refers to formulations of the ECHR concerning ruling involving Portugal :

""Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and the development of everyone. Except for the reserve expressed in par. 2, freedom of expression is applicable not only to 'information' or 'ideas' welcomed with favour or regarded as inoffensive or indifferent, but also to those that aggress, shock or disturb. It is required to be so by pluralism, tolerance and open-mindedness without which there is no 'democratic society'. As stipulated in Article 10, this freedom is subject to exceptions which must, however, be interpreted restrictively, the need for any restriction having to be demonstrated convincingly."

"These principles are of particular importance for the press. If this one should not exceed the limits laid down in, inter alia, 'of somebody else's reputation protection', it is its mission to provide information and ideas on political issues and on other topics of general interest. The limits of permissible criticism are wider with regard to a politician, acting in his capacity as a public character, than to a simple citizen."


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