Process number 6000/09.8TVLSB-A.L 1
Lisbon Appellate Court Decision
I - Report
At the Judicial Circuit of Lisbon
Kate Marie Healey McCann,
Gerald Patrick McCann,
Madeleine Beth McCann,
Sean Michael McCann and
Amelie Eve McCann
Have filed an unspecified injunction against:
Goncalo de Sousa Amaral,
Guerra e Paz, Editores, SA
VC - Valentim de Carvalho - Filmes, Audiovisuais, SA and
TVI - Televisao Independente, SA
Alleging that the first two applicants are the Mother and Father of the other applicants, who are all underage, being that it is commonly known that little Madeleine disappeared on the 3rd of May, 2007, and her disappearance prompted an extensive police investigation.
The defendant, Goncalo Amaral, was one of the Judiciary Police (PJ) investigators that was involved in the investigation and later on wrote a book that is titled "Maddie The Truth of the Lie", in which he defends, inter alia
|that there is a serious possibility that little Maddie accidentally died in the apartment where she was staying and that her parents did, in some manner, undertake the concealment of her cadaver.|
They conclude by requesting:
1. The prohibition of sale and the order to collect, for destruction, all the books and videos that are still left at points of sale or other deposits or warehouses;
2. The prohibition to perform any new editions of the book or the video, or of any other books and/or videos that defend the same already criticised thesis, and that are destined to be sold or made public by any other means, in Portugal;
3. The prohibition to cede the editorial or author rights of the contents of the book or the video, or of any other books and videos about the same theme, for publication anywhere in the world;
4. The prohibition to expressly cite, analyse or comment, verbally or in writing, any parts of the book or the video that defend the thesis of death of the third Applicant or of the concealment of her body, by the first two Applicants;
5. The prohibition to reproduce any comment, opinion or interview in which that thesis is defended or can be inferred;
6. The prohibition to publish statements, photographs, or any other documentation that is allegedly connected to said book and video or said thesis.
The petition was fully refused as it was understood that the perils of damage had already been consummated.
In an appeal, that decision was revoked by a decision of this Appeals Court, and the production of evidence was demanded.
After evidence was produced before the lower court, a new sentence was issued, which sustained the injunction and decided as follows:
a) The prohibition for the defendants to sell the books and videos that were still available at points of sale or at other deposits or warehouses and the obligation for the defendants to collect them and to deliver them to the depositary that is nominated below; b) The prohibition for the defendants to perform any new editions of the book or the video, or of any other books and/or videos that defend the same thesis, and that are destined to be sold or made public by any other means in Portugal;
c) The prohibition for the Defendants to cede the editorial or authorial rights over the contents of the book or the video, or of any other books and videos about the same theme, for publication anywhere in the world;
d) The prohibition for the Defendants to expressly cite, analyse or comment, verbally or in writing, any parts of the book or the video that defend the thesis of death of the third Applicant or of the concealment of her body, by the first two Applicants;
|e) The prohibition for the Defendants to reproduce any comment, opinion or interview in which that thesis is defended or can be inferred;|
f) The prohibition for the Defendants to publish statements, photographs, or any other documentation that is allegedly connected to said book and video or said thesis.
Furthermore, the Court condemns each one of the Defendant firms to pay a compulsory pecuniary sanction of 1000 Euros for each day that they do not obey the prohibitions or the order to apprehend the books and the videos.
After having been notified of that decision, appeals were filed by:
Goncalo de Sousa Amaral,
Guerra e Paz, Editores, SA
VC - Valentim de Carvalho - Filmes, Audiovisuais, SA and
TVI - Televisao Independente, SA
All of them based on the right of freedom of expression of thought that is constitutionally consecrated and furthermore the fact that the statements and facts that were published in the book are the mere reproduction of solid data that is part of the investigation that was started at due time, and that said statements and facts are even part of the investigation's archiving dispatch that was signed by a Prosecutor of the Portuguese Republic.
A new sentence was issued, which basically upheld the sentence that had been issued before and that granted the request.
Against that sentence, appeals were filed by the four opponents.
[a summary of the arguments that were presented by the four opponents follows]
|II - Legal basis and Reasons|
|The following facts were proved:|
From the injunction request
1 - On the 24th of July, 2008, the first Defendant published in Portugal, under edition of the second Defendant, the book that he is the author of, "Maddie The Truth of the Lie".
2 - In that book, the first Defendant defends the thesis that:
1) The child Madeleine McCann died in the Ocean Club Apartment, in Vila da Luz, on the evening of the 3rd of May, 2007;
2) The simulation of an abduction took place;
3) Kate Healy and Gerald McCann are suspected of involvement in the concealment of their daughter's cadaver,
4) The death may have been the outcome of a tragic accident;
5) There are indications of neglect regarding the guardianship and security of the children.
3 - The aforementioned book attained 4 editions until the end of July, 2008, 9 editions until the end of August, 2008, and 12 editions until the end of September, 2008.
4 - Each edition was comprised of approximately 10.000 copies.
5 -The book is presently sold out at practically all points of sale.
6 - When the book was published, the first Defendant gave interviews to all the media that requested him to do so, namely RTP, and in those interviews he defended the thesis that he presents in the book.
7 - The first Defendant also gave, among others, an interview to "Correio da Manha" newspaper, which was published in their edition of the 24th of July, 2008, where he defended the thesis that he presents in the book.
8 - At the beginning of the month of May, 2009, the same book was published in France, now under the title "Maddie, L'Enquete interdite: Les revelations du commissaire portugais charge de l'enquete".
9 - The first Defendant gave countless interviews to several media in France, including the one that was published by newspaper "Le Parisien" and its corresponding website.
10 - In those interviews, the first Defendant once more mentioned the thesis that he presents in the book.
11 - The book's French edition was and is systematically and profusely published on the internet, at least at: [a list of websites follows]
|12 - Between the date when the Portuguese edition was published, on 24th June, 2008, and the date of the book's French edition, in May 2009, the fourth Defendant broadcast a television programme which was produced by the third Defendant, that reserved to itself the ownership of the corresponding rights.|
13 - The first emission of that television programme took place on the 13th of April, 2009.
14 - The second emission of that television contents took place on the 12th of May, 2009.
15 - That TV programme was broadcast in Portugal at least on those two occasions.
16 - The same TV programme/video is intrinsically based upon the contents of the book "Maddie The Truth of the Lie".
17 - In the video in question, the First Defendant once again sustains his theory that the Third Applicant is no longer alive, that her death occurred within the Ocean Club apartment and that her parents, the First Applicants, concealed the cadaver of their daughter.
18 - At least two million two hundred people viewed the first broadcast of this TV programme.
19 - At the end of April 2009, the DVD corresponding to this programme began to be commercialised, with the title and subtitle of "Maddie : What Lies Beneath the Truth" - A Powerful Documentary based on the best seller "Maddie - The Truth of the Lie" by Goncalo Amaral.
20 - 75.000 copies of this DVD have already been distributed for sale.
21 - The DVD is published, at least, on the web site of the Third Defendant.
22 - The first Applicants are married to each other and are the parents of the third, fourth and fifth Applicants.
23 - During the Criminal Investigation in which the first Applicants were constituted arguidos, the archiving dispatch was issued, referring to them on pages 145-173, dated 21st July 2010.
24 - Madeleine Beth McCann has been missing since the of 3rd May, 2007.
25 - Curricular articles were divulged on the Internet relating to the First Defendant, that spoke of him as a correct, structured, sociably adept man, namely to perform political roles.
26 - The first Defendant is a person much mentioned in the press.
27 - The curricular information previously referred to (point 25) reveals a man who studied engineering, graduated in legal and criminal sciences and who was an officer/inspector of the PJ for 27 [sic] years.
28 - The first Defendant knows the significance and scope of an archiving dispatch in a criminal case.
29 - The first Defendant knows who holds power over an investigation, who can open or re-open it and under which circumstances.
30 - The first Defendant knows what defamation and slander mean.
31 - The first Defendant knows what it means not to be at the service of a criminal investigation.
32 - The first Defendant has professional experience and is an adult.
|33 - With the divulgation of his theory about the events of May 3, 2007 in Praia da Luz, the first Defendant, with the help of the three other Defendants, saw himself being promoted and earned money.|
34 - The first Defendant had pretensions to intervene in local political life.
35 - The Defendants aim to divulge the book and DVD around the world, gaining financially, commercially and socially, which deepens the suffering of the first two Applicants and makes the searches for the third Applicant difficult.
From the oppositions
1 - The Defendant was the Coordinating Inspector of the "Maddie Case" Investigations from the 3rd of May, acting in this quality, within the scope of Inquest process No 201/07.0GALGS of the Lagos Public Ministry Services, until the date when he was withdrawn from the case, on the 2nd of October, 2007.
2 - He retired from service on the 1st of July, 2008.
3 - On the date that he was withdrawn from the case, it was of the Defendant's knowledge that some of the investigators had formulated the opinion that Madeleine McCann had died in the apartment, that a simulation of abduction occurred and that her parents were suspected of concealing a cadaver.
4 - The investigation activities that the first Defendant reports in the book and in the documentary are contained in the investigation process.
5 - The investigation process was made available in electronic format, namely to the national and international media, who proceeded to divulge it, thereby enabling knowledge, comments and public and universal discussion of it.
6 - Any person can have access to these facts and to the documents of the investigation process in which they were verified, on the internet, only a "click" away.
7 - The witness friends of the first Applicants did not make themselves available to appear in Portugal for a diligence of reconstruction of facts, as was determined by the dispatch from the Prosecutor's Office, on pages 4636 to 4638 of Volume XII of the Investigation.
8 - Under the terms of the editorial contract, relating to the book "Maddie - The Truth of the Lie", signed with the first Defendant, the author's rights of ownership were temporarily ceded to the second Defendant, only with regards to the editing of the book.
9 - The book was published, through other editors, in some countries (apart from France) as pointed out under item 8 of the provisional injunction, as follows:
In Spain, in September 2008, with the title "Maddie - La Verdad de la Mentira", with eventual commercialisation in Castilian language into Latin American countries.
In Denmark, in November 2008, with the title "Maddie - Sandheden on Lognem", with eventual commercialisation in other Nordic countries.
In Italy, in December 2008, with the title "Maddie - La Verita della Menzogna", with commercialisation in the Italian language throughout the world.
|In Holland, in April 2009, with the title "Maddie - De Waarheide Achter de Leugen", with commercialisation in the Dutch language throughout the world.|
In Germany, in June 2009, with the title "Maddie - Die Wahrheit tiber die Luge", with commercialisation in Austria and Switzerland.
10 - There is an English version circulating on the internet, on the web site www.gerrymccansblogs.co.uk/PJ/TRANSLATIONS.htm, where a Portuguese version can also be found.
11 - On their web site (www.etc), the first Applicants cite the theory of the first Defendant.
12 - The Daily newspaper "Correio da Manha", in its edition of 3rd October 2007, published a supplement with the title "Maddie, The Diary of a Mystery".
13 - By means of the Fund that was created by the first Applicants, diligences that are considered to be opportune are being made in order to obtain leads about what happened to and to discover the whereabouts of the third Applicant.
|14 - During the first trimester of 2008, "VC Filmes" learned that the first Defendant was writing a book, the publication of which would take place during the first semester of that same year, with an objective and factual description and the revelation of elements, at the time un-published, of the investigation into the disappearance of Madeleine McCann which he had led.|
15 - "VC Filmes" expressed their interest to the first Defendant for an audiovisual adaptation (documentary and fiction) of said book.
16 - And with him [Dr. Amaral], an agreement was made for ceding the exclusive rights in their [VC Filmes'] favour for the adaptation of a book into a documentary or fiction that could have the format of a book for cinema or a telefilm for television and which should be explored on all platforms and on all kinds of media.
17 - The author of the book agreed to participate as narrator of the documentary.
18 - And he ceded to "VC Filmes" all the ownership of author's rights and connected rights that belonged to him as author and narrator, namely for effects of the exploration by "VC Filmes" of the documentary by all methods and by all means.
19 - "VC Filmes" ceded to the fourth Defendant the rights of television broadcast or transmission in Portugal of the audio visual documentary entitled "Maddie – The Truth of the Lie", produced by them.
20 - And, as happens with all other cinematographic and audio visual works produced by "VC Filmes", the latter ceded to its distributor "Valentim de Carvalho Multimedia, S.A.", namely the rights of edition and distribution of the documentary for publication in video format, thereby making themselves their representative as regards the exploration or commercialisation of the rights of television broadcast or transmission of this documentary in foreign countries.
21 - "Valentim de Carvalho Multimedia" in representation of "VC Filmes", ceded the rights of television broadcast or transmission of the same documentary to television stations in Spain, Andorra, France, (Flemish) Belgium, Denmark and Poland, on dates previous to the notification to "VC Filmes" of the decision presented in this injunction.
|22 – Until that same date, the documentary in question was reproduced only once in order to be edited, published and sold in Portugal, in video format, in this case a DVD.|
23 - Neither "Valentim de Carvalho Multimedia" nor "VC Filmes" had ceded any rights of edition or author's rights concerning the content of the same documentary (or the video that reproduces it) for publication in any other part of the world.
24 - The reproduction and editing were authorised by "Valentim de Carvalho Multimedia" to the company "Presslivre, Imprensa Livre, S.A.", owner of the newspaper "Correio da Manha" by means of a contract established between both parties, under which terms, the DVDs, their covers and packaging would be produced on account, by order and under the responsibility of "Presslivre", to be distributed and commercialised jointly with the newspaper "Correo da Manha".
25 - And the entire process of registration and classification of the video edition (DVD) of the documentary at IGAC would be, as it was, developed by "Valentim de Carvalho Multimedia", the costs of which process would be covered by "Presslivre", as indeed was done.
26 - 75.000 DVD units were produced for said edition.
27 - The respective distribution for sale took place together with a distribution for sale of the edition of the newspaper "Correio da Manha" on the 24th of April, 2009.
28 - Only a small number of the DVDs distributed was effectively sold, 63.369 units having been returned to "Presslivre".
29 - The investigation files were made available in electronic format, namely to the national and foreign press, which disseminated it, enabling it to become known and to be publicly and universally commented upon and discussed.
30 - Anyone has access to those facts and to the documents from the investigation process in which they were verified, on the internet, at the distance of a "click".
31 - The documentary was published and sub-titled in English, by third parties who published it on the internet, without the knowledge and against the will of "VC Filmes".
32 - The first two Applicants, in collaboration with British television station "Channel 4" also produced a documentary about the disappearance of the third Applicant in Praia da Luz in May 2007, which expressed their version of the events.
33 - This audio visual piece, titled "Still Missing Madeleine" and which corresponds to a documentary, with a duration of 60 minutes, was subject to a preliminary licensing agreement by "Mentorn International" to "TVI", for the Portuguese territory, with an exclusivity duration for the period between 7th May 2009 and 6th May 2010.
34 - This agreement even began to be negotiated before the first screening by the Defendant [TVI] of the documentary based upon the book of the first Defendant, and was duly reduced to a written text, in the form of a "Deal Memo" (business deal), which was signed by both parties on 15th April 2009.
|35 - "TVI" programmed the screening of this documentary with the version of the Applicants, in such a manner as to complement the showing of the documentary based upon the book by the first Defendant, seeking by acting in this way, to clarify the public in an unbiased way, showing various versions and possible explanations for the same facts.|
36 - On 23rd April 2009, "TVI" was informed by telephone that "Mentorn" was not going to comply with the preliminary licensing agreement in question, which was confirmed in writing, on 5th May 2009.
37 - The reason why "Mentorn" was not going to comply with the agreement in question was that the McCann family had given instructions that they did not want the programme to be licensed to "TVI".
38 - The documentary that reports the version of facts defended by the Applicants was screened on 12th May 2009 by "SIC" channel, with the title "Maddie – two years of anguish", having been previously been broadcast in the UK.
39 - In that documentary, an explanation is given, with the help of private detectives, of the version of facts defended by the Applicants and a re-construction of the night of the disappearance of Madeleine McCann is made.
40 - The first Applicants have easy access to national and international press, having given an interview to the American television programme "Oprah", presented by the well known Oprah Winfrey and which had already been shown in Portugal, also by SIC, on 4th May 2009 and again on 12th May.
41 - That programme was transmitted throughout the entire world by means of available satellite signals and cable networks.
42 - In this interview the first Applicants once again explained their theory about the fateful events of the night of 3rd May 2007 and once again launched an appeal for her search, revealing new facts about the private investigations that they hired.
43 - In the documentary presented by "SIC", the first Applicants revealed the existence of at least one more witness statement, re-constructions and photo fits that reinforce the abduction theory.
|After reading the proved facts, we do now have to place them into a juridical context.|
Concerning the suitability or unsuitability of the appeals, it is considered that the matter is solved in the dispatch that was written at the lower court, on pages 1.359/1.367, and the appeals are all suitable.
As was written, and well, in the decision that is under analysis, the injunction is a legal instrument that is destined to effectively protect subjective rights or other jurisdictionally relevant interests. ---
|Its practical importance does not result from the capacity to solve conflicts of interest in an autonomous and definitive way, but rather from its usefulness in the anticipation of certain effects of judicial decisions, in the prevention of serious or hardly repairable violation of rights, in the prevention of financial damages or in the preservation of status quo, until the final decision on the case is issued.|
It represents an anticipation or a guarantee for efficacy concerning the outcome of the main case and it is based on a summary analysis (summaria cognitio) of the factual situation that allows to state the right as being likely (fumus boni iuris) and the justified fear that said right may be seriously damaged or rendered useless, if a certain injunction is not decreed (periculum in mora).
It is, after all, an antechamber of the main process, and it allows for an interim or provisory decision to be issued, with the purpose of diminishing the erosive effects that derive from the delay in a definitive solution, or to render fruitful the decision that may be favourable to the Applicant.
Article number 381º, no 1 of the Civil Process Code stipulates that whenever someone shows a well-based fear that someone else may cause a serious and hardly repairable damage to his or her right, that person may request the conservatory or anticipatory injunction that is specifically adequate to ensure the effectiveness of the right that is under threat.
On the other hand, article 387º, no 1 of the same diploma establishes that the injunction is decreed whenever there is a serious possibility of the existence of the right, and the fear of its lesion is sufficiently well-based.
Therefore, the injunction is a means, and not an end. It does not seek to directly and immediately carry out the substantial right, but rather to take measures that ensure the efficacy of a subsequent providence, which is actually destined to act on the material right.
Therefore, the injunction is of a provisory nature and always depends on a cause (preliminarily or incidentally) - article 383º, no 1 of the Civil Process Code.
|Thus the success of the injunction depends on two requisites:|
a) the verification of the appearance of a right;b) the demonstration of the danger of said apparent right not being satisfied. Concerning the first requisite, the court is asked to appreciate or to judge on a mere possibility or verisimilitude (bonus fumus juris). As far as the second requisite is concerned, a judgement of stronger and more convincing probability is at stake.
|The fear of serious and hardly repairable damage that is mentioned in article 387, number I of the Civil Process Code means "present and founded fear".|
The fear is founded when it is of such nature that it justifies the requested injunction; and it only justifies it when circumstances present themselves in a way that convinces that damage to said right is imminent.
In the a quo Court's decision the dangers of lesion to the applicants' physical integrity or their treatment in a degrading, cruel or inhumane manner are promptly set aside.
The dangers of lesion to the applicants' reservation of private and family life subsist, as well as the lesion to their right to image and a good name and the right to usufruct from the penal process' guarantees, namely the right to a fair investigation and the right to freedom and to safety.
In an opposite position are the rights of the defendants – the right to freedom of expression of thought and the freedom of press.
Honour, the right to a good name are personality rights that are densely defended and protected by several legislative orders:
Right away, by the constitutional order (confront article 26 of the Portuguese Republic's Constitution), and also in the international order.
|Ordinary law also protects the same rights, as can be understood by reading articles 70, 72 and 484 of the Civil Code.|
As it has to be, jurisprudence strongly reflects that general tutelage and the defence of citizens' good name and image.
By all, one should read the very recent Ruling from the Supreme Court of Justice dated 20.01.2010 (Presiding Judge: Fonseca Ramos), that can be reached on the internet, on the Court's database that is lodged under the address www.dgsi.pt/:
I) - One of the limits to the freedom of information, which is therefore not an absolute right, is the safeguard of the right to a good name. Journalists, [and] the media, are bound to ethical, deontological duties of rigour and objectivity.
II) – The media have the right, the social duty, to disseminate news and to emit critical or non-critical opinions, and it is important that they do so while respecting the truth and the intangible rights of others, like personality rights.
III) – The right to honour in a wider sense, and the right to freedom of press and of opinion are traditional areas of conflict.
V) – Criticism is limited by the targeted person(s)' right, but it does not lose legitimacy if it is slashing, sharp, as long as not insulting, because every so often that is the writer's style.
VI) ... VII) ... VIII) ...
IX) – To criticise implies to censor, censorship that takes place in the media only stops being legitimate as a manifestation of individual freedom when it expresses objective antijuricity,
|violating rights that are extremely personal and which affect, in a more or less lasting way according to men's memory, goods that have to be preserved like the ones that are at stake here, to a good name and to social prestige.|
The right to inform is nowadays unanimously accepted as a fundamental demand of democratic societies of pluralist expression, it is consecrated by Article 37º of the Portuguese Republic's Constitution
The rights of citizenship, which are the basis of social life, constitute the core of the very personality (physical and moral) of the human being; thus the right to life, to physical and moral integrity, to a good name, to image, to freedom, to the protection of intimacy are consecrated constitutionally (articles 24º, 25º, 26º) and in civil law (articles 70º and 484º of the Civil Code).
Due to the fact that all of these rights are constitutionally protected, in principle none of them raises above the others, and - in its practical exercise - each one of them should cede as strictly necessary and in a proportional way, in order to accommodate the adequate practice of the rest of them.
Necessity, proportionality and adequacy are the fundamental principles for the practical conjugation of the concrete exercise of said rights; therefore, the rules that are to be respected must be set case by case, thus allowing to decide which conflicting rights must be compressed, what limits have to be observed and what dominant rights must be protected.
And it is through a cautious pondering of the rights at hand that we will be able to extract some conclusions concerning this specific case.
The book that was written by the first defendant, Dr. Goncalo Amaral, presents a thesis that was at one time defended by several participants in the police investigation: that little Madeleine died accidentally and that her parents, here the first applicants, were suspected of concealing the cadaver.
|This defendant was the Coordinating Inspector of the investigation into the case of the disappearance, thus being the most qualified police officer who intervened in the investigation until the time when, through a decision from the Judiciary Police's (PJ) directory, he was removed from that function.|
In that role, the defendant was deeply involved in the entire investigation and had the opportunity to formulate all of the possible conclusions about the case, while it was under investigation.
Approximately 5 months later, Dr. Goncalo Amaral was removed from the investigation through a decision of the PJ's directory.
As he clarifies several times throughout the book, the author felt the need to write it right away in order to, as he says, "recover my good name, which was publicly dragged through the mud while the institution that I served for 26 years, the Portuguese Judiciary Police, did not allow me to defend myself, nor defended me institutionally. I asked for permission to speak out in that sense, a request that remains unanswered to this day. I fully respected the PJ's rules, and remained in silence. Nevertheless, said silence was tearing my dignity apart.
Later on, I was removed from the investigation. I then decided that it was time for me to defend myself in a public way. Therefore, I immediately requested my retirement, so I could regain the plenitude of my freedom of expression."
This is a first point - and one that is not small - that should be registered: the author feels he is the victim of injustice and wants to re-establish the truth, at least his truth or his vision of truth, even more so as he felt that his honour was being diminished and the police force that he owed obedience to did not allow him to reply, as a police officer, to those attacks against his professional pride and his honour as a qualified criminal investigation police officer.
|In the book that is at stake here - "Maddie - the Truth of the Lie" - the author presents a vast multiplicity of facts and then offers his interpretation of said facts.|
Those facts are all part of the investigation and are exhaustively considered and weighed in the archiving dispatch of the process that is on the DVD which has been appended to this court case (page 441).
In that description, there are main facts and others that are secondary, but which the author attributes value to, based on his experience as a police investigator, an activity that he has performed for 26 years.
The author describes, in detail, several facts and circumstances that were not coherent in between each other, from the outset of the investigation, thus prompting contradictory conclusions.
In the archiving dispatch that is signed by two Public Ministry Magistrates, it is written that "From the analysis of the set of depositions that were made it became evident that important details existed which were not fully understood and integrated, which needed to be tested and verified on the location of events itself, thus rendering it possible to establish the apparent failures to meet and the lack of synchronisation, even divergences, in a diligence that is suited for that effect, which was the reconstitution, which was not possible to perform, despite the commitment that was displayed by the Public Ministry and by the PJ, to attain that purpose ..."
In that very same dispatch, the result of the tests that were performed by the sniffer dogs "Eddie" (a dog that was specially trained to signal cadaver odour) and "Keela" (specially trained to detect the presence of human blood) are mentioned.
"Eddie" marked (signalled) cadaver odour:
The dog "Eddie" again marked the signal of cadaver:
The dog "Keela" detected residues of human blood:
The dogs' indications cannot be used as evidence in court, but in multiple cases they provided precious help in terms of collection of evidence for the Scotland Yard and the FBI, with positive results.
|These indications were later not corroborated by the British forensics lab that was chosen by the investigation, but they were enough to constitute the applicants, Madeleine's parents, as arguidos in the criminal investigation that was performed over her disappearance.|
In possession of that new data, and crossing it with the data that had been collected before, the Portuguese authorities - the Public Ministry and the Judiciary Police - tried to perform a reconstitution of the facts, they did and tried everything, but due to the lack of availability of the McCann couple and their friends, who did not show up, said diligence could not be performed and those facts still remain to be clarified.
Concerning that matter, it is written in the final dispatch that "(...) despite the fact that the national authorities took all measures to render their travelling to Portugal possible, due to motives that are unknown, after the many doubts that they raised concerning the need and the opportunity of their travelling were clarified several times, they chose not to show up, which rendered the diligence impossible to perform.
We believe that the main damaged party were the McCann arguidos, who missed the possibility to prove what they have protested since they were made arguidos: their innocence towards the fateful event; the investigation was also hindered, because said facts remain unclear (...)".
In any case, the fact is that the indications that were mentioned above were sufficient to make the McCann couple arguidos.
The subsequent collection and production of evidence, namely the forensics evidence that was collected and treated in laboratory, weakened that conviction and thus the couple stopped being arguidos. What is certain is that since the start of the investigation there were incongruent and even contradictory situations concerning the witness statements; the telephone records of calls
|that were made and received on mobile phones that belonged to the couple and to the group of friends that were on holidays with them; the movements of people right after the disappearance of the little girl was noticed, concerning the state in which the bedroom from where the child disappeared from was found (closed window? open window? partially open window?) etc., and the mystery would only become even thicker due to the clues that were left by the already mentioned sniffer dogs.|
All of this is reported in detailed manner in the book that is at stake here, reproducing the contents of some of the case files, which also had an effect on the above mentioned final dispatch that was signed by two Public Ministry Magistrates.
In the book, we do not verify any reference to any facts that are not in that dispatch.
Where the author differs from the Prosecutors who have written the dispatch, is in the logical, police-work-related and investigative interpretation that he does of those facts.
In that aspect, we stand before the exercise of freedom of opinion, which is a domain in which the author is an expert, as he was a criminal investigator for 26 years.
Let us now analyse the juridical focus of the rights that were invoked by the applicants:
As mentioned above, the Court's decision a quo immediately put aside the dangers of damage to the applicants' physical integrity or their treatment in a degrading, cruel or inhumane way.
The following dangers subsist:
1. damage to the reservation of the applicants' private and family life;
2. damage to their right to image and a good name;
3. damage to their right to the guarantees of the penal process, namely the right to a fair investigation and the right to freedom and safety.
|Concerning the applicants' reservation of private life, we verify that they themselves have given numerous interviews and intervened in the media, thus giving them [the media] information that would hardly be publicised by any other means: this includes the documentary that was produced by the British TV station "Channel 4", which had the applicants' cooperation and was widely broadcast in the United Kingdom and later on in Portugal (ref. Nos. 32 to 35 of the aforementioned proven facts); one should pay attention to the fact that the applicants have easy access to the national and international media, having given an interview to North American television talk show "Oprah" hosted by the well-known Oprah Winfrey, which was already broadcast in Portugal, also by SIC, on the 4th of May, 2009, and again on the 12th of May (ref. No. 40 of the same facts).|
Concerning this matter, the Civil Code establishes as follows:
(Right to reservation over the intimacy of private life)
1. Everyone must maintain the reservation over someone else's intimacy of private life.
2. The extent of reservation is defined according to the nature of the case and the persons' condition.
(Voluntary limitation of personality rights)
1. All voluntary limitation of the exercise of personality rights is null if it is contrary to the principles of public order.
2. The voluntary limitation, whenever legal, is always revocable, although with the obligation to indemnify any damages that were caused to legitimate expectations of the other party.
We conclude that the applicants voluntarily decided to limit their right to the intimacy of private life, certainly envisaging higher values like the discovery of their daughter Madeleine's whereabouts, but upon voluntarily limiting that right, they opened the doors for other people to give their opinion about the case, in synchrony with what they were saying, but also possibly in contradiction with their directions, yet always within the bounds of a legitimate and constitutionally consecrated right to opinion and freedom of expression of thought.
|We do not see that the right of the book's author, the defendant, can be limited by a right to the reservation of intimacy that suffered voluntary limitations by their holders, the applicants.|
In the same way, concerning the applicants' right to image and a good name: upon placing the case in the public square and giving it worldwide notoriety, the applicants opened all doors to all opinions, even those that are adversarial to them.
In any case, we understand that the allegation of facts that are profusely contained in the judicial inquiry and that were even published through an initiative of the Republic's Attorney General's Office, can in no way be seen as an offence against the right to image and a good name of the subjects in the process.
Finally, concerning the damage to the right to usufruct from the penal process' guarantees, namely the right to a fair investigation and the right to freedom and safety, we still cannot understand how it is possible for said rights to be offended by the contents of a book that describes facts from the investigation, although it parts from the interpretation that the Public Ministry's Magistrates made of those facts, yet offering based, solidly built and logical interpretations.
We thus reach a point where it seems to be important to stress the following: the indicative facts that led to the applicants' constitution as arguidos within the inquiry were later on not valued by the Public Ministry's Magistrates in order to lead to a criminal accusation, but those very same facts, seen through another prism and with another base, may lead to a different conclusion from that which was attained by those same Magistrates - those are indications that were deemed to be insufficient in terms of evidence in a criminal investigation, but they can be appreciated in a different way, in an interpretation that is legitimate to be published as a literary work, as long as said interpretation does not offend any fundamental rights of anyone involved - and we have written above already why we understand that said interpretation does not offend the applicants' rights.
|In a concise manner:|
The book at stake in this process - "Maddie - the Truth of the Lie" - which was written by the defendant Dr. Goncalo Amaral, has the main motivation of defending his personal and professional honour, as the author points out right away in the preface and throughout his text.
The contents of the book does not offend any of the applicants' fundamental rights.
The exercise of its writing and publication is included in the constitutional rights that are secured to everyone by the European Convention on Human Rights and by the Portuguese Republic's Constitution, namely in its articles 37º and 38º.
|As we arrive at this point, we conclude that the decision that was made by the Court a quo must be revoked, and the analysis of the other issues that are placed under appeal are not justified, as they are considered prejudiced.|
The appeal by defendant Dr. Goncalo Amaral is sustained.
The other appeals are not taken into consideration, as it is understood that their appreciation is prejudiced - article 660º, no 2, of the Civil Process Code.
III - Decision
In harmony with what is written above, under the terms of the cited dispositions, the Judges at this Appeals Court declare the validity of the appeal filed by defendant Dr. Goncalo Amaral, and the sentence of the Court a quo is revoked, its disposition replaced by the following:
The injunction is deemed not valid because it was not proved.
Furthermore we deliberate that we do not acknowledge the rest of the appeals.
Costs to be paid by the appealed parties [the McCann couple and their three children].
Lisbon and Appeals Court, 14.10.2010
|The Appellate Court Judges,|
Francisco Bruto da Costa
Catarina Arelo Manso