1.Everyone shall possess the right to freely express and publicise his thoughts in words, images or by any other means, as well as the right to inform others, inform himself and be informed without hindrance or discrimination 2.Exercise of the said rights shall not be hindered or limited by any type or form of censorship Constitution of the Portuguese Republic, Article 37.º

PJ Forbidden To Read McCanns' Mobile Phone Messages

Relation court alleges “reservations over the private life” of Maddie’s parents

Judge does not allow McCanns’ text messages to be read

The PJ wanted to know what was contained in the text messages that were written by the McCanns and their friends, on the day before and on the day after the little girl disappeared

The Public Ministry and the inspectors at the Polícia Judiciária that are responsible for the Maddie case, are not going to be able to read the contents of the mobile phone text messages that were sent and received by the McCann couple during the moments that followed the English girl’s disappearance. The PJ’s access to this data was denied by the Relation Court in Évora, through a ruling that was accessed by 24Horas, and which invokes the legal guarantees of reservation and confidentiality of telecommunications.

A few days after Kate and Gerry were heard at the PJ and made arguidos, last September, the Republic’s Prosecutor from the Judicial District of Portimão, Magalhães e Menezes, asked the judge that is responsible for the process, to request the three national mobile phone operators to send a digital record of “the full listings of telephone traffic concerning both incoming and outgoing calls” for ten phone numbers, between the 28th of April and the 9th of September 2007. That list, according to the Prosecutor, should include the cellular location and traceback, as well as any calls that were made in roaming, and SMS and MMS messages, and their contents. The analysis of this data would allow the police to, at least, reconstitute the steps made by Kate, Gerry and the friends that were spending their holidays with them at the Ocean Club, in Praia da Luz, on the days immediately before the disappearance of Madeleine McCann. The investigators are especially curious about the contents of 18 messages that were written and sent, from a yet unidentified mobile phone, to Gerry McCann, between the 2nd and the 4th of May 2007, and about all the communications that were made by the group between 8 p.m. on the 3rd of May and 12 p.m., on the next day.

Judge did not give permission

The request that was made by Magalhães e Menezes started out by being rejected by the criminal instruction judge at the Portimão Court, who, through a dispatch, “did not authorize the sending, on a digital medium (CD or DVD), of the contents of any message that was sent or received as an SMS or MMS, concerning all the telephone numbers” at hand.

The understanding of the Judge is that this access would “mean to gain knowledge of the contents of the conversation or telephone communication, without a previous judicial dispatch, authorizing such procedure”. Which is not foreseen in the Portuguese law.
Not resigning, the Public Ministry appealed the Relation in Évora, trying to open up another possibility: in order to preserve the “reservation of the intimacy of the private life of the interlocutors”, the messages would be previously analysed by the instruction judge, who would evaluate their contents and the possibility that they could be used as evidence. The ruling from the Relation Court, signed by judge Fernando Ribeiro Cardoso, dismisses that possibility, as well. “The data from the contents, as the tenor of the messages, can only be intercepted in real time, with due judicial authorization”, the document refers, adding that the mere existence of such records or recordings would configure a violation of the law.

Retroactive listening

The investigators that have been given the task of finding out what happened to Madeleine McCann, wanted to access some sort of retroactive listening operation, by requesting information, in late September, about the messages that were exchanged, months earlier, by the arguidos and by the English citizens that were spending their holidays with the McCanns in Praia da Luz. For the Relation Court in Évora this is an idea that has no legal support and “it makes no sense” to ask the operators (TMN, Vodafone and Optimus) that they “make the contents of communications and messages that were expedited and received between certain telephones, during a certain past period, available”. Although it recognizes the “hypothetical technical possibility” that the contents of those messages was the object of register or recording, the Relation Court understands that it is a “reality that from the legal point of view, could never have taken place, under a penalty of an eventual incursion into criminal responsibility by whomever has carried it out or permitted it to be carried out”. “As the contents of those messages, that were eventually expedited or received, through the telephones that are at issue, during the period that is comprehended between the 28th of April and the 9th of September of the same year, could not have been the object of any interception, registration and recording by any operator, the request that is being made by the Public Ministry in the First Instance, and sustained in an appeal, lacks any legal support, in that part”, the ruling concludes.

Four Crimes under Investigation

There are four crimes being investigated as part of the process related to the Maddie Case, under the jurisdiction of the Portimão Court. In addition to the suspicions of abduction, homicide and hiding a cadaver, the judgment of the Relation Court Évora, now released by 24horas, confirms that the Portuguese Justice system is also reviewing the occurrence of the practice of the crime of exposure by abandonment of a minor, punishable under the Penal Code with a sentence of between 3 and 10 years in prison. According to the law, one commits this crime when they place the life of another person in danger, "leaving them defenseless, whenever the accused fails in their responsibility to protect, watch over or assist."

Deadline from the PJ is at the doorstep

Reconstitution to take place, soon?

The Polícia Judiciária remains interested in making the reconstitution of the evening of May 3, 2007. The inspectors want to seat the seven friends at the table in the Tapas Bar, again, and to understand the movements of all of them, on the evening when the little girl disappeared. In this manner, the Judiciária wants to identify possible incoherencies in the statements made by each one of the persons that were heard on location, in those days. It so happens that the McCanns and their friends do not reach an agreement and the most likely thing to happen is that they do not attend the reconstitution, which may not be carried out. Madeleine’s parents have often expressed their availability to help, but what is certain is that the 29th of May, the day that was scheduled by the PJ as the date when this diligence would be carried out, is on the doorstep and there are still no certainties concerning the couple’s presence in Portugal. News are expected in the coming days.


Without access to the contents of the telephone messages, PJ could, however, know who spoke to whom on the day that Maddie disappeared. This, because the criminal instruction judge has not raised questions relative to the analysis of the "lists of telephone traffic in regards to calls made and received."

According to the Portimão Public Prosecutor, the right to protect the intimacy of one's private life "runs no greater risk of being harmed by accessing the contents of SMS or MMS messages than by the knowledge of the circumstances of time, place, mode and frequency of the calls."

The judicial secrecy has been extended until July. From that date onwards, the process can be consulted by the arguidos’ lawyers, like Carlos Pinto de Abreu, Rogério Alves and Francisco Pagarete.

The process continues to have three arguidos: Kate and Gerry McCann and Robert Murat. Maddie’s parents were questioned and made arguidos in early September. They returned home, to Rothley, in England, right afterwards.

The PJ’s report about the disappearance arrived at the Public Ministry on the 11th of September. From that moment on, it was accompanied by the General Prosecutor for the District of Évora, Luís Bilro Verão.

Source: 24Horas – Paper Edition pages 4 and 5
Translation by Astro and Debk

Full ruling of the Relation Court in Évora on the 29 of April 2008


  1. Leis!


    Hoje ouvi que várias pessoas,familiares de pinochet, estão a ser questionadas e postas em causa.

  2. If this is true it's a shame, because I think the contents of those messages would break this case wide open. They would probably indicate whether or not a crime took place, if it was an accident or premeditated, whether or not the ensuing events were planned and also the extent of the involvement of the people who took part in these communications.
    Too bad.


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