by Margarida Davim
The Appellate Court lifted on October 19, the ban on the sale of the book written by Gonçalo Amaral, The Truth of the Lie. However, Isabel Duarte, the McCann’s lawyer and trustee of the apprehended copies, has failed to return the ten thousand copies to the book publishers.
There are about ten thousand copies of Gonçalo Amaral’s book, The Truth of the Lie, which are being kept by Kate and Gerry McCann’s lawyer, even though the Appellate Court has annulled the decision to forbid its sale and distribution.
«It is very peculiar for a lawyer who is a candidate to the Superior Council of the Bar Association [Lawyer’s Order] to display this kind of behaviour, failing to obey the decision of a Court», commented to SOL the former Judiciary Police, indignant at not having yet received the books.
Amaral «does not wish to believe» in the hypothesis that the books were destructed, even though that was precisely the «McCann couple desire».
According to the daily newspaper Correio da Manhã, Isabel Duarte has delivered an appeal to the Supreme Court of Justice, at the end of last week, alleging that the Appellate Court decision «failed to take into account facts which, throughout the process, were never put in question».
The lawyer believes that «the Appellate Court did not consider the book was written to make money, to deepen the McCann couple’s pain and to hinder the investigation».
Gonçalo Amaral has a different opinion: «The non deliverance of the books can constitute a crime of civil disobedience».
The former coordinator of the investigation to Madeleine McCann’s disappearance states that the Appellate Court ruling has no recourse. «The appeal decision would only be admitted has an extraordinary recourse to the Supreme Court of Justice, that is, a recourse of jurisprudence uniformity* if a case law [jurisprudency] existed opposing the decision made by the Appellate Court». Even in that case, the recourse «would not have a suspending effect».
in SOL 10.11.10
A non-legalese attempt by a non-legalese citizen to explain a legal recourse *
Jurisprudence Uniformity [Latin iuris prudentia] is a legal recourse in Portuguese Law, 763º article & subsequent in Código de Processo Penal (CPP) - Portuguese Civil Code, used to appeal a Court ruling. As the name implies, there needs to be a case making law, or several, opposing a court ruling which will be used as the 'grounds' - hence the term jurisprudency - for an appeal against said court ruling.
What does this legal recourse mean in this specific case? - basically that the McCanns lawyer, Isabel Duarte, would have to find similar cases where books have been banned for similar reasons in Portugal and use those cases, as a legal evidence and basis to make the appeal to the Supreme Court - which as far as I know it is something that might be hard to find in the Portuguese law, unless one goes to the years previous to 1974, to those 48 years of Portuguese Dictatorship when books were banned and people were threatened into silence, by force.
However, as Dr. Amaral explains in the above article, even then, even if the Supreme Court accepts an appeal made using this extraordinary legal recourse, the facts that remain are:
a) the Lisbon Appellate Court Judges has ordered on October 19, that Dr. Isabel Duarte, the trustee of the previously banned books, to restitute back those copies to the legitimate owner, i.e. Guerra & Paz book publishers;
b) an appeal using the jurisprudency uniformity [Article 768º] has a merely non-staying effect;
c) even if the McCann's lawyer uses another legalese tactic [Articles 771º to 782º of the CPC] to appeal for an exceptional review of the Appellate Court of Lisbon ruling, which seems to be the case according to to her own statement above; and the appeal to the Supreme is accepted, the law states very clearly [Article 774º] that an application for a review has no suspensive effect.
Therefore, and in a very non-legalese manner: the books should have been returned upon the moment the McCann's lawyer was notified of the Appellate Court decision which overturned the book ban, and subsequently its sales. And 'ungagged' a Portuguese citizen.