Supreme Court of Justice - 'Joana case' ruling - Part IV
We can conclude that the representation that was made by arguido AA [João Cipriano] in the reconstitution files from page 273 onwards, concerning the outcome of the aggressions, results from the manner how those were produced, with them successively applying violence that revealed itself apt to produce hits of the victim’s head against the wall, therefore in all lights they could not have avoided knowing the outcome. The manner in which the quartering of the cadaver is performed, patent in the reconstitution file from page 2100 onwards, leaves no doubt concerning the direct intent of the action and also about its motive.
This is enough to fundament the Court’s conviction concerning the correspondent facts.
It is further added, and concerning the same factuality, that witness DD1 (II’s stepfather) stated that arguido AA confided to him that “they had killed the girl”. Witness II [Leandro Silva] also mentioned that BB [Leonor Cipriano] told him that “she had slapped CC and AA finished killing her” (later on, arguida BB tried to justify the statement by telling II that she had only said that because the PJ had hit her, but on the day that she mentioned the aggression against CC, BB and II were alone and he did not see any marks on BB that she had been beaten, and there was no motive for her to make such a statement to her partner if it wasn’t true). Of course these witnesses’ statements cannot be seen as a confession from the arguidos – who did not confess, but rather opted for silence during the court session – but that doesn’t mean that they cannot simply not be valued by the court.
Article 129 of the Penal Process Code establishes the prohibition, in principle, of testimony that doesn’t verse on concrete facts and direct knowledge, particularly on “hearsay testimony”, hence the determination of the need to confirm the indirect deposition, with the consequent hearing of the persons “who one heard saying”. Only after such confirmation may such an indirect deposition become effective as a means of evidence, but in this case the confirmation would have to be made by the arguidos and they chose not to make any statements nor can they be forced to make them. According to number 7 of article 356 of the Penal Process Code, which number 2 of article 357 points to, it is not allowed to reproduce the contents of statements whose reading is not authorised, with a recourse to the person who collected them, which is well understood, but the witness statement of a person who is not a criminal police member and who didn't collect statements, but merely asked and heard the reply, is a different thing
Alas, our superior courts have already decided that: “the hearsay evidence, when reported to statements that were produced by the arguido outside of the process, is subject to free appreciation by the court (Ac. da RC de 6.10.1988, BMJ 380, p. 552); “if the witness reports having heard the confession from the arguido himself, such does not configure indirect deposition under terms and for the effect of article 129 of the Penal Process Code (Ac. STJ de 15.11.2000, proc. 2551/2000-3ª); “the hearsay evidence, when reported to statements that were produced by the arguido outside of the process, can be subject to free appreciation by the court when the arguido is present during court session, therefore, with the full possibility of contradicting it, which is to say, to defend himself” – in this case, the arguido had chosen to remain silent during court session (Ac. RC de 18.6.2003, CJ 2003, tomo III, p. 51).
The Constitutional court has also decided already that “article 129 1 (in conjugation with article 128 1) of the Penal Process Code, interpreted in the sense that the court may freely value the indirect depositions of witnesses that report conversations held with a co-arguido who, when called to depose, refuses to do so in the exercise of his right to silence, does not impact the arguido’s defence right in an intolerable, disproportionate or manifestly oppressive manner. Therefore, as there is no inadmissible shortening of the arguido’s defence right, that form is not unconstitutional” (Ac. Trib. Constitucional nº 440/99 de 8.7, proc. 268/99, DR II Série de 9.11.1999).
With the complete set of indicative evidence conjoined, the Court has created the conviction that CC is dead (the appearance of the body is unnecessary given the Court’s conviction that the arguidos have made it disappear in the manner that has been described) and that it was the arguidos who practised the facts. All the established elements, appreciated in conjunction, have set aside any reasonable doubt and have created the full conviction that both arguidos have committed the facts in the manner that is described in this ruling."
in Supreme Court of Justice - ruling SJ200604200003635, 20.04.2006
Supreme Court of Justice - 'Joana case' ruling - Part I - Fundamentation
Supreme Court of Justice - 'Joana case' ruling - Part II
Supreme Court of Justice - 'Joana case' ruling - Part III