THE LIES TOLD ABOUT THE CIPRIANO SCANDAL

Prompted by this:

AN ACCOUNT OF THE CONVICTION OF LEONOR AND JOAO CIPRIANO FOR THE MURDER OF JOANA CIPRIANO
Tony Bennett Today at 9:04 am

I am sorry, I have so far been unable to identify the precise source of this account. I am publishing it here in view of the fact that Amnesty International in its 2012 report has seen fit to include a finding that Dr Goncalo Amaral and others were guilty of torturing Leonor Cipriano:

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The Case of Joana Cipriano

Joana Cipriano

The case of Joana Cipriano highlights serious omissions on the part of authorities who failed to spot that the little girl was being exploited and neglected. According to a neighbour of the girl, Joana seemed unnaturally mature for her age. “She has a bearing and an attitude greatly beyond her years. Instead of playing with other children, she seems to spend her time taking care of her two little brothers.” Another neighbour described her as the “Cinderella” of the household, seen at all times of the day and night in the village, running errands for her family.

In September of 2004, Algarve knew another tragic history which evolved a child death. In the beginning, the mother, Leonor Cipriano started for presenting complaint in the GNR on the alleged disappearance of her daughter Joana of 8 years.

The PJ still investigated the presumption of abduction, but this theory fast became false when the proper mother of the girl fell into suspicion.

After long inquiries, happened what was feared. João Cipriano, uncle of the girl and brother of Leonor, confessed to the PJ that he and his sister had spanked the girl until the death. Months later, he added to his confession that had quartered [chopped up] the corpse. According to João, the body had been cut in three parts and kept in a refrigerating coffer, where the PJ found blood vestiges that corresponded to the girl. The couple had got rid themselves of the body in the following days of the crime, but they didn’t say where they had hidden it.

Court hears Joana’s horror story

Onlookers in the public gallery screamed abuse at the mother and uncle of Joana Cipriano as they were ferried to and from court.

The case, which has shocked the nation with its account of incest, murder and desecration, took just three days to be tried. The Public Ministry has pressed for jail terms of 24 years for the defendants, who are charged with qualified murder, as well as desecrating and concealing a body.

Joana disappeared, presumed murdered, in the Algarve village of Figueira, near Portimão. She was last seen buying food from a nearby café on the evening of September 12 last year. Prosecutors charge that she came home to find her mother, 34-year-old Leonor Cipriano, and her uncle, 32-year-old João Cipriano, having sex. Fearful that Joana would relate the incident to her stepfather, they allege that the couple decided to kill her. The prosecution also said that the couple had repeatedly mistreated Joana, recounting that she was little more than a “servant” in her own household.

The court heard a catalogue of horrifying details, including an earlier video-taped confession from Joana’s uncle in which he related the circumstances of his niece’s murder. This video testimony is now the subject of an appeal from the defence team who claim it should be excluded because the couple exercised their right to remain silent during the trial. In the taped confession, João Cipriano said he and his sister hit Joana who then banged her head against a wall before collapsing, unconscious, onto the floor. João Cipriano claimed that he had wanted to call an ambulance but that his sister prevented him, telling him instead to go to Joana’s stepfather and inform him that she had disappeared.

Mother had appealed for daughter’s return

Her mother made subsequent public appeals for her daughter’s safe return, claiming that she had been kidnapped. But authorities began to suspect the couple after villagers noted their allegedly off-hand reaction to Joana’s disappearance. Local shopkeeper Nídia Rochato remembered that Leonor neither cried nor seemed unduly concerned. When she commented on this to her, Leonor reportedly replied that she believed that her daughter was still alive.

The absence of a corpse delayed the arraignment process but the Public Ministry were able to indict the couple following statements from neighbours. Investigators also gathered forensic evidence at the house where Joana lived with her mother, stepfather and two brothers.

A total of 45 witnesses, mostly relatives and villagers, testified in court between Wednesday and Friday of last week. Four jurors (one man and three women) and three judges will decide the verdict. The opinions of the jurors – a 20-year-old student, a physiotherapist, a library employee and a waitress – will carry the same weight as the judges.

Joana’s uncle had contempt for human life

Leonor and João Cipriano, who have been held on remand for over a year, stood silently and without emotion as they heard prosecutor José Pinheiro outline his case. He described João Cipriano as a man who “has contempt for human life, psychopathic tendencies and difficulty in controlling impulses”. Pinheiro also castigated Joana’s mother for her “emotional instability, insensitivity and disregard for other people’s needs”. Only when Pinheiro announced that he was pressing for a 24-year jail term for both defendants did Leonor show emotion, sobbing uncontrollably.

Pinheiro explained why his team was pressing for such a long sentence. “The defendants’ guilt is heightened by their cold and calculating behaviour after their child’s death, as well as the devious manoeuvres they adopted to conceal the crime,” he said.

The trial included key testimony from Joana’s stepfather, António Leandro, who related that Leonor had confided to him that she had had a sexual relationship with her brother. He also told the court that during this conversation, which took place a few days after Joana’s disappearance, at judicial police headquarters, Leonor had admitted that she and her brother had killed the little girl.

A key element of the prosecution’s case rests on the fact that the couple dismembered the girl’s corpse. António Leandro, confronted with photographs of tools allegedly used by the couple, said he recognised a saw he had kept at home. In the video taped confession, João Cipriano admitted that the body of the girl was dismembered and placed in a refrigerated trunk. A doctor involved in the case, Albino Santana dos Santos, conceded that body parts, matching the size of a girl of Joana’s height, could have been stuffed inside the trunk.

Defence team challenges evidence

Despite the evidence, João Grado, Leonor Cipriano’s lawyer, still pressed for her acquittal, describing the evidence as “miserable”. João Cipriano’s lawyer, Sara Rosado, reminded the court that Joana’s body had never been found and dismissed the prosecution’s version of events. “João Cipriano has an intelligence level considerably lower than the average. How is it possible that such a person could deceive everyone for so long?” she asked the court.

But prosecutors disagreed, describing the case as a “veritable horror story that proves that reality really does surpass fiction”. “Nobody can say that they wanted to kill her when they hit. But later when they persisted, they knew that she was going to die. Their guilt is absolute – the victim was a minor, the daughter and niece of the defendants,” they told the court.

The corpse of the girl never was found, but this fact didn’t hinder the PJ to continue with the inquiries, and in November of 2005 the court of Portimão condemned Leonor to twenty years and four months of arrest and João Cipriano to a penalty of nineteen years and two months.

The absence of a corpse delayed the arraignment process but the Public Ministry were able to indict the couple following statements from neighbours. Investigators also gathered forensic evidence at the house where Joana lived with her mother, stepfather and two brothers.

Pinheiro castigated Joana’s mother for her “emotional instability, insensitivity and disregard for other people’s needs”. Only when Pinheiro announced that he was pressing for a 24-year jail term for both defendants did Leonor show emotion, sobbing uncontrollably.

Pinheiro explained why his team was pressing for such a long sentence. “The defendants’ guilt is heightened by their cold and calculating behaviour after their child’s death, as well as the devious manoeuvres they adopted to conceal the crime,” he said.

++++++++++++++++++++++++++++++++++++++

The couple received 16 year sentences.

What the report doesn’t say is the mother waited 2 days before she notified the police.

During that time she washed her house down with petrol.

Blood was found in the freezer belonging to Joana which the mother claimed came from a nose bleed after she had given Joana a beating.

3 years later the brother has written a letter in which he claimed that Joana had been sold by her mother and was not dead.

++++++++++++++++++++++

ANOTHER REPORT SAID:


Leoneor Ciprinao and his brother, who had a incestuous relationship, were both sentenced to 16 years in prison, for the killing of the child, Joana Cipriano.

They killed her, after she came back home earlier and found sister and brother (her mother and her uncle) having sexual relations. They cut the body in pieces, kept a few in the refrigerator, than burned and gave the remainings to the pigs, to eat . Samples of blood of the child, Joana Cipriano, were found inside her mother’s refrigerator.

Leonor Cipriano accused five officers of beating her. They were put on a police line-up and she didn’t recognise not even one of the alleged aggressors (including Chief-Inspector Gonçalo Amaral).

The magistrate of the Public Prosecutor’s Office investigated the complaint of Leonor Cipriano against CID Chief-Inspector Gonçalo Amaral and the other five CID officers and decided to prosecute them, didn’t included in the accusation documents the results of the police line-up (which took place with Leonor Cipriano behind a two-way mirror…)

That magistrate is being sued by the Portuguese CID Officers union, and has a complaint with the Conselho Superior da Magistratura (“High Magistrates Council”) the body in charge of nominating and disciplining judges and magistrates from the Public Prosecutor’s Office.

Update: The trial of the officers who supposedly beaten up Leonor Cipriano started today 11th of February in the Court of Portimão.

[Note by TB: I think this was 11 February 2007 or 2008]

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What a load of dross! It sounds like some of Arguido Cristovao's bullsh*t. Note it fails to mention that there were other children in the house when all this incest/dismemberment/scrubbing with petrol was going on - odd that they didn't notice any of it.


But prosecutors disagreed, describing the case as a “veritable horror story that proves that reality really does surpass fiction


Yes - so what does it say about Gonc and co that they dreamed this up? Gonc seems very taken with fridges, doesn't he?

This is NOT going to go away; I can see Gonc ending up in jail himself over it, along with one or two of his cronies.

people like cristóvão or amaral are very brave when it comes to women, because if it was with a man who knew how to defend himself, they certainly were not so brave, exactly the opposite: cowards.

bb1, you´re right: "This is NOT going to go away; I can see Gonc ending up in jail himself over it, along with one or two of his cronies..", the sooner the better.

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/bfaf1cea93ab75fb8025716200388d89?OpenDocument&Highlight=0,cipriano

The forkers should read that, and see just how many of Gonc's gruesome fantasies were thrown out.

Unfortunately, there are still half-wits in the world who think that wearing black blouses and red trousers are sure proof of guilt. Some of them even give evidence in Portuguese courts.

They should have a very good read of


9. 2. Unproven facts

They can then see how much garbage they keep spouting about this, no doubt on orders from their adored Gonc.

Bennett, should stay away from issues he knows nothing about.

It's the wilful ignorance that gets me, Tony. If he - or any of them - actually bothered to look deeper at the case, they would know that Gonc's lurid fantasies were thrown out.

That there was NO forensic evidence of this supposed bloodbath; that the blood in the fridge wasn't even checked to see if it was human, never mind Joana's.

They would also know that the case would not even have passed the prosecutor's desk in the US or UK.

They would know that one of the three judges put it on record that he thought Mrs Cipriano was innocent; that it is a cause celebre in Portugal, and that the locals also think the woman was framed, and that whoever abducted Joana is still on the loose.

These people are the criminals' best friends.

Where to start?
Okay. The blood in the fridge was not tested by Forensics, so not only did they not know if it was Joana's blood, they didn't even know if it was Human.
And the witness who said that the body could have been stored in the fridge, also said that it would have been very difficult, especially as the door wasn't closing properly.

When exactly, has Bennett ever stuck to the facts?

Oh, he's probably had his orders from Team Gonc to start another campaign of falsehoods, to distract from the Amnesty report, Tony.

bb1 wrote:Oh, he's probably had his orders from Team Gonc to start another campaign of falsehoods, to distract from the Amnesty report, Tony.

He should be spending his time distracting others from his own plight.
You do know, he is so very well thought of, (cough) by a certain law enforcement?

crazytony wrote:Bennett, should stay away from issues he knows nothing about.

Yes, Tony. But he does rather ask for it, doesn't he. But then he pokes his nose into all sorts of things that he knows nothing about.

The Pig Pens were searched and no bones were ever found. And even my dog who has got the jaws of a Mastiff cannot entirely dispose of Bones. Pigs certainly can't.

JUST LOOK AT THE COINCIDENCES BETWEEN CIPRIANO AND McCANN CASES
GONC MUST HAVE A WRITTEN SCRIPT FOR ALL HIS COCK UPS

http://justice4mccannfam.5forum.biz/t287-joana-cipriano

Without trace of Joana

Last time Joana was seen was when she was heading home after making some shopping for her mother. She had bought a pack of milk and two tuna tins. What happen after that was never determined. At first Joana has been classified as ‘missing’.

GNR soldier – "We received a radio communication to go to Figueira village, near the church. The girl’s mother was already there with her partner, Leandro. The objective was to gather the most information to identify the little girl: age, height, how dressed, etc. After that and with these elements, we carried a search through the village.”

The night of 12th September were the village’s festivities, the traditional ‘Festival do berbigão’ [berbigão is a kind of small seafood clamp, TN]. On this amateur video, Joana isn’t seen, but her stepfather António Leandro can be seen there. Next days Portimão GNR widens the searches around the village. Posters were distributed but no trace of Joana. The mother started giving interviews:

“Everybody down there at the coffe shop says there is a story very badly told. The young girl disappeared suddenly, as there were these festivities, it was someone from outside who grabbed her and took her in the car.”

Four days later the case is handled to the PJ from Portimão and four days later [another four days] to PJ of Faro. PJ inspectores hardly knew they were facing one of the most complexes investigations ever.

Guilhermino Encarnação – “During this investigation 50 000kms of ground were walked, 2100 processual acts were produced, about 40 inspectors were used, and requested to LPC [Scientific Police Laboratory] and INML [Forensic Medicine National Laboratory] around 40 examinations and analysis”

Leonor Cipriano went on giving interviews. She doesn’t know if Joana is dead or alive, but asks for her to be returned.

PJ finds a clue: the statements issued by the mother, the family, the uncle did not match.

Gonçalo Amaral: - “The initial statements given to GNR showed a badly told story and several contradictions between people, witnesses belonging to the family circle. Based on these statements and contradictions, it was decided at a given point in time for a new take of statements from these individuals, all at the same time at police headquarters so that they couldn’t contact with each other. The main objective was to determine if the child could have not come back home. There it was proved that she had came back home, it was a lie, there was a simulation of a disappearance, and after that was to understand what happened.”

Leonor is detained by PJ on Sptember 21st, 11 days after the disappearance of her daughter. The child’s uncle, João Cipriano, is jailed next day, on suspicion of homicide. The following days, João takes the inspectors to dozens of different places to indicate where Joana’s body was, but no success, her body wasn’t found.

Gonçalo Amaral: - “At the beginning, it was said that he was kidding us, not exactly. He was probably trying to tell us that the body was spread out or that there was no body. But on the other hand all those dilligencies were proofs and we should porsue them so that we could talk about them in court. We were not talking about arguido’s statements, we were talking about our dilligences. On the other hand it could also happen that he really told us where the body was or remains or parts and we could not go, we couldn’t afford it. We had to go always where he told us, and that’s what happened.”

PJ’s thesis is that the child’s body was fed to the pigs, a thesis later not proved in court. Shocked with this macabre story, hundreds of people invaded the village looking for answers. The same answers PJ also was looking for, why was Joana murdered and where was her body.

Guilhermino Encarnação: - “At the beginning it is a disappearance and this ‘crime’ is not defined in law, may have behind it a series of crimes, namely abduction, people trafficking, criminal association, all these crimes may be behind a disappearance. Complexity starts there.”

Both Leonor and her brother confessed the crime to the police. João Cipriano agreed to tape a reconstruction where he explains using a kitchen stool how his niece was killed by slappings and where she hit her head against the wall. The images taken by PJ were shown during the trial under the protest of the defense lawyers.

Sara Rosado(João Cipriano’s lawyer): - “I can understand that all the pressure developped on this process has lead to these and other statements in the same sense, on the reverse sense, with different details, different facts, the version showed in that video is not even the accusation thesis. So, only the pressure put on the interveening people, this process suffered several vicissitudes, a strong pressure over everybody including the arguidos who were in jail and so on.”

RTP sought authorisatition from the Portimão Court to air a small excerpt of the video but the presiding judge denied , invoking the right to image of the people intervening in the video. João Cipriano also agreed to make another photographic reconstruction where with the help of a doll he explained how he sliced Joana’s body in three parts. According to the Public Prosecutor's accusation all three body parts were kept in black plastic bags in a small deep freezer for the first couple of hours. Several exams made by the LPC experts at Joana’s house, traces of human blood were found in one of the deep freezer drawers. DNA analysis did not confirm it was Joana’s blood

Gonçalo Amaral: - “That is one of the versions given and that we believe as viable. There is a drop of blood on a drawer, not as if anyone opens it and drops a bit of blood, no the blood dropped down the drawer and it was clean, that why only the bit on the bottom was there, in a place of difficult cleaning. The explanation was necessary in these circumstances where the homicide occurs as there is not a prepared, planned homicide, it just happens, it occured the way everybody knows it did. João hid the body, its viable its possible they tried on a first phase to think what to do with the body”.

It was also proved during trial that the different parts of the child’s body could only fit into the freezer if the drawer where the human blood was was removed.

Sara Rosado: - “The doctor who attended that dilligence told the court that the body would fit in the limit, being correct that from his statement is highlighted that only removing the drawer. The blood was found in the rear of the drawer so one should remove the drawer. The doctor said that the arguido was astonished by that which means he never thought about it. So, it is unlikely that something similar had occured.”

Many more residues of blood were found in the house. With ultra-violet light, the experts detected blood on the walls near the outdoor, hand and facial impressions of a child. Also, not proved it was the child’s blood. Behind a lampswitch next to the outdoor more light residues were found but the DNA coincided with the one of Ruben Cipriano the younger child living in the house.

João Grade(Leonor Cipriano lawyer): - “There was no blood in these many different areas, there were residues of blood, human, animal, which is normal if you think of a housewife peeling potatoes while watching the soap, she might made a cut and bled onto the floor, it is enough that she cleaned the same way any one of us would do, with the exams we are able to make today it is possible to reach the conclusion that there was blood there and that that is a blood residue but that isn’t enough for anything. In any of our houses there may be blood for different reasons.”

On the house floor and on a mop there were residues of a mixture of human and animal blood. Exams results again were not conclusive. Alledgedly the analysis made to the residues were inconclusive because Leonor cleaned the house with ‘domestic petrol’ as the house was infested by ticks, something PJ inspectors doubted as they found the house filthy and with dirty dishes, only a few walls had been cleaned. As soon as the first suspicions arose, the house should have had been secured.

Gonçalo Amaral: - “It was noticeable that the house had been washed, that area where the blood is had been washed, with ‘petrol’ Leonor bought the day she left the police premises in Portimão, so there was an attempt that resulted ok, one may say, of preventing any laboratorial result. The possible residues were collected under the circumstances and we concluded that it was human blood. As the court says in the final report something happened in that house that day. And that’s what we tried to determine and reached the conclusion it was a homicide.”

Another proof found has been a pair of red shoes that the child alledgedly was wearing the day she disappeared. For the PJ, the mother and uncle forgot to hide the shoes unlike the shoppings that never were found.

Sara Rosado: - “Nobody knows what she was wearing , specially the shoes.”

February 2005 pictures of Leonor badly bruised were published. The trial is starting soon. Four inspectors charged of torture and Gonçalo Amaral charged with preverting the course of justice and omiting facts.

Guilhermino Encarnação: - “This is extremely difficult because in 30 years of criminal investigation I don’t see the confession of a crime of this seriouness without the arguidos saying that they were victims of torture or ill treatment. This for us, police forces, starts being normal, usual, natural. So I don’t give much importance to that.”

Leonor and João chose to keep silent through the whole trial. In December 2005 they were sentenced for the crimes of murder and body concealment. Leonor was sentenced to 20 years and 4 months in jail, João to 19 years and 2 months. The court of three judges and four jurors considered that the brothers did not have intention of killing the child but accepted as proved that the little girl was dismembered although did not conclude that the body had been kept in the freezer as it was not proved that the child was killed because she unexpectedly found the mother and the uncle having sexual intercourse. Both the defense lawyers and public prosecutors appealed and the Supreme Court reduced the terms. With many doubts still standing, Leonor’s lawyer presented another appeal to the HREC.

João Grade: - “It is frustating, at least, that we don’t even know what happened. We have the story of that 10 year old girl who disappeared 8 years ago and that reappeared now at 18. We do not know if Joana will reappear in twenty, in four years, alive, dead, I don’t know.”

RTP tried to talk to Leonor and João Cipriano currently serving jail sentences. Leonor sent us a signed declaration accepting the interview. Two days after the request was put to the direction of the prison services, the same services sent us another declaration where Leonor annulled the first one alledgedly because of lack of clear knowledge. João Cipriano accepted to give his first interview, a written interview where he states his innocence: “I didn’t harm my niece Joana Guerreiro. I’m innocent. I was threatened with beatings to make the video tape shown in court but it is all lies. PJ went almost everyday to Olhão prison where I was to ask me where Joana was and, afraid of the beatings, I went on saying it was here and there but it was all lies. It was my sister Leonor who told me that Joana was well, she told me she had sold her to foreign couple.”

Joana’s fate is not clear yet

Joan was killed by "frivolous reasons", mother and uncle are suspected
LUSA Sep 23, 2004, 20:57

The child missing for 11 days in the Algarve was killed at home by "frivolous reasons", but the body has not yet been found, Lusa said today the source of the Judicial Police.

"One can speak of murder with no body by the information obtained in the testimony and expert evidence," said the deputy director of the PJ in Faro, Joao Neto.

The victim's mother, Leonor Cipriano, and maternal uncle were arrested by the PJ, because they are suspected of the authorship of "murder", but the source did not indicate that they have confessed to the crime.

"Everything leads us to believe that this was a violent and crime caused by futile reasons, relating to issues of ownership of small sums of money that the victim had," he said.

"The indication of the exact spot where the child is buried we were not provided and what we are doing is through attempts to locate the body," said the deputy director of the PJ in Faro, stressing that "no testimony" of the act.

The PJ in Faro revealed that mobilized exceptional human, technical and scientific are allowing the establishment of facts.

"The Judicial Police have applied all available related to the collection of evidence and there is a strong likelihood that the events occurred, including the killing of small," said the deputy director of Faro.

"We have elements that allow us to say that there was violence," said Joao Neto.

Leonor Cipriano and her brother will be heard Friday in court for application of coercive measures.

Here's a bit of a suprise, just for Bentit

Sara Rosado(João Cipriano’s lawyer):


I wonder why they wouldn't let RTP show the video, COVER UP?

translation:

Judgment of Supreme Court
Procedure: 06P363

No. Conventional: JSTJ000
Rapporteur: RODRIGUES DA COSTA
Descriptors: MURDER
CONCEALMENT OF CORPSE
Desecration of Corpse
JURY
DOCUMENTATION OF THE EVIDENCE
VICES
RATIONALE
RESTORATION NATURAL
DOLO POSSIBLE
MEASURE OF PUNISHMENT

Document Number: SJ200604200003635
Date of Judgment: 04/20/2006
Vote: MOST OF 1 AND 1 DEC VOT VOT VENC
Full Text: S
Privacy: 1

Procedural Environment: REVIEW.
Decision: GRANTED IN PART THE MAGAZINE.

Summary: 1 - The modern crime and means that there are now to disappear completely traces of a corpse is not required to impose a direct examination to the victim's body in case of a crime that results in death or as a condition of others, given that the risks of impunity are increased, either by virtue of a high level of sophisticated crime, either by virtue of ingenuity or luck occasional common criminal, who can dispose of the main direct evidence of their crime.
2 - The risk of condemning someone for murder without the physical presence of the corpse or any trace material that can safely certify the death of the victim (eg, the emergence of a vital organ) in the first line puts the chance of miscarriage of justice.
3 - However, the miscarriage of justice exists in any criminal case and is not an exclusive crimes of homicide, so it makes sense not to condemn the agent of murder just because it was not directly examined the corpse, as it does not condemn someone for crime of rape just because it was not possible to examine the direct victim.
4 - In weighing the risks of miscarriage of justice and impunity, we must opt ​​for a compromise solution that ensures both the requirements for suppression of crime and the presumption of innocence of the condemned, in the event that a crime has as typical element of the death of the victim (eg, the crime of murder), or as a condition prior to his death (eg, the crime of desecration of a corpse), the death must be proved by direct forensic examination, but unable to carry out such examination and there is no legal rule that imposes, shall be admitted other evidence indicating that "moral certainty about the occurrence of the event" (UU).
5 - The grand jury has greater legitimacy because its constitutionalization for judging the most serious crimes, although their participation is not mandatory (art. 207. Critical of the law), are among the fundamental principles of rule of law democratic when it comes to democratization of the judicial organization (JORGE MIRANDA Constitution and Democracy - Library Petrony, 1976, p. 308 et seq.).
6 - This does not mean, however, that the mere participation of jurors delete or mitigate the control to be exercised by the Board of Appeal on the formation process of the conviction of the court "a quo", but in this case, the conviction, in addition to being shielded by a comprehensive foundation, has the additional assurance of this process have intervened a grand jury, ensuring you a more democratic, which means a more broad and diverse, plural and heterogeneous in composition, as an expression concentrated from the very source from which emanates from the sovereignty and thus greater reliability.
7 - Contrary to what happens with the court's final judgment collectively, that can be drawn as to the facts to the court of appeals with respect to the documented evidence in support audio or video, when the court intervenes Jury directed the feature directly to the Supreme Court and is intended solely for the review of matters of law, without prejudice to invoke any of the defects alluded to in the paragraph. 2 and 3, Art. No. 410. thereof, "provided that the defect (in the case of no. 2) results from the text of the contested decision, either alone or in conjunction with the rules of ordinary experience. "

8 - the legislature understood that the intervention of the jury gives a greater assurance of reliability in determining the facts, by restricting the right to appeal that part.
9 - The documentation in the minutes of the hearing before the jury will serve to remind the court, at the time of the decision of a lower court, which was said by witnesses, will also serve to assess whether or not committed any void judgment, but its lack does not deny the defendant's constitutional right to appeal against that - art. ° -1 ° 32 of the CRP, or determines the repetition of the trial, because the use of facts is no more in case of trial by jury, the review of documented evidence in the record.
10 - The insufficiency of the facts proven means that the findings are insufficient for the decision of law, from the standpoint of the various solutions that perfilem - acquittal, conviction, a reason for precluding wrongfulness, guilt or shame , conditions relevant for the determination of the latter, and so on. - And that because the court failed to investigate or rule on the relevant facts alleged by the prosecution or the defense or the result of the discussion of the question or because they did not investigate facts which should have been established at the hearing, to its importance for the decision For example, for the selection or determination of the pen.
11 - The vice of the insurmountable contradiction between this and the reasoning or decision occurs when there is proven and unproven as a given fact, while at the same time it affirms or denies the same, while simultaneously alleging facts to give contradictory and even if provides unsurpassed confrontation between the foundation and contradictory evidence of the facts, or conflict between the reasoning and decision, when the opposite decision or reasons justifying the decision is not justified.
12 - The error apparent on examination of evidence is to the court have given as proved or not proved certain fact, when the conclusion should clearly have been the opposite, since by virtue of a logical inconsistency, since for offending scientifically formulated principles or laws, including the natural sciences and physical sciences, or counteract the general principles of the common experience of people, as for having violated or postponed a fundamental principle or rule on evidence, there is noticeable error in the assessment of the evidence when, 'at least proof that it based its decision could not substantiate the court's decision on those facts "(Judgment of 30.01.2002, Proc. n. 01/30/2002 No, the 3rd section, the Summaries of Judgments Sections Criminal, annual edition 2002, p. 16/17), and this proof can not be other than that which formed the basis for the reasoning of the court conviction, have seen the error throughout the text of the contested decision, without recourse to extrinsic evidence.
13 - In any case, the error must be perceived by the average man, which is another way of saying that the error must be manifest or notorious, as has been postulated to nearly overwhelming majority of the jurisprudence of the Supreme.
14 - Apart from the grounds to be the touchstone for any decision and a fundamental aspect of the 'compromise' democratic sovereign body 'courts' with the people and a consequence of the principle of democratic rule of law (Articles 2 ., 3. º, 202., no. 1 and 205., no. 1, all of the Constitution), the reasons must be more demanding and as thorough as possible in the case of crime of murder in which there appeared the victim's body and could not perform the examination to the relevant body to determine the exact cause of death, and, moreover, the defendants opted by the right and there is no direct witnesses of the facts.
14 - The decision meets the requirements of reasoning is plausibly supports, according to the process that has been objectified in logical reasoning that guided the interpretation of all tests combined with each other and with the rules of experience, the option was taken on the facts , appearing as a logical consequence of this solution and appropriate to the reality of things, given the evidence that they served the court and the lessons that according to this reality - the experience - they allowed.
15 - The recovery is independent proof, which contains contributions of the accused, but not to be confused with the evidence for statements, may be worth it at the trial, even if the defendant chooses the right to remain silent, without such violation of set art. 357. Of the CPP.
16 - The verbalization that supports the measure reconstitution did not bring them back to strict procedural concept of 'statements', as the speech or 'declarations' have produced autonomous value, since they are instrumental in relation to rebuilding the fact.
17 - The so-called "informal talks" are statements made by defendant to police agencies outside the criminal process without reducing the self and, therefore, without respecting the principle of procedural legality under Articles 2., 57. ° ff ., 262. º et seq., 275. º, 355. to 357 º. of the CPP and art. 29. Of the Constitution (nulla worth judicio sine), the statements can not be valued so produced as evidence and to compete for the formation of the conviction of the court.
18 - Information provided by the defendant at the time of reconstitution are not statements made outside the scope of the criminal police bodies; are the verbalization of the measure reconstitution validly made in the process, according to the rules pertaining to this evidence and particularly prescribed in art. 150. Of the CPP, and even if provided, and that this step, the request for criminal police agency or prosecutor, in general are intended to clarify the act of mixing, mingling with it.
19 - If the defendant makes that reconstitution involves another defendant, to give evidence against the latter results will be regarded as confirmed in an increased demand for proof, if it is confirmed by other evidence, derived from direct and indirect evidence, that appropriately combined with each other and with the rules of the experiment, showing the accuracy of reconstruction for this defendant, who opted for the trial right to silence, as well as who carried out the reconstruction.
20 - Taking all this evidence and in particular the reconstruction has been produced and examined at the hearing and as such subject to the adversarial principle, the applicant can not rely on the option by the silence of both defendants to argue, for example, the violation of the principle of cross examination in relation to 'declarations' that embody the very act of restoration, since such a claim is beyond the circle of interests that are essential to the protection of that right, part of the right to defense.
21 - The indirect evidence are those that allow the seizure of the facts probands from deductions and inductions objectiváveis ​​from evidentiary facts, under the general rules of experience.
22 - If the inability to hear the source cited by the witnesses to hear the result right to silence to which they forwarded the defendants, so that nothing of the facts stated versed in the statements, being present at the hearing, this impossibility is not substantially different from situation under the law of impossibility of the person indicated to be found, and this addition to the proof of facts not result exclusively of such indirect statements, it was one more element (not decisive) in all of the evidence, and that the court acted with the prudence that the inability to hear the power required and in accordance with the rules of logic and experience would seem that the valuation testimony of those relative terms does not offend the provisions of art. 129. Of the CPP, in correlation with the rights of defendants, including the right to defense enshrined in art. 32., No. 1 and 5 of the Constitution.
23 - The law only excludes the testimony of law enforcement agencies that addresses the content of statements made by them, being completely unreasonable that such entities could not testify about those facts on which its position was none other than the observer or the of actors and observers, who, by having participated in them, had a privileged knowledge of these facts.
24 - Breach of the principle in dubio pro reo, relating to facts and is a fundamental principle in assessing and evaluating the evidence with constitutional expression to the level of fundamental rights can be syndicated by STJ.
25 - However, that syndication has to exert itself within the limits of cognition of this Court and should therefore result in the text of the contested decision in similar terms to the vices of art. 410., No. 2 of the CPP. That is, when, through a meaningful analysis, proves that the appeal court against the accused valorou a particular event, despite the continued existence of a reasonable doubt, or because the court clearly desfavoreceu the defendant in this situation, or because an incorrect assessment of evidence, affirmed its belief in giving evidence against the defendant as a certain fact relevant when the meaning of this proof, the extracted material evidence that they served the court, was likely to generate a reasonable doubt that should be valued their favor, or when, following the decision making process evidenced by motivating the conviction, the conclusion drawn by the court regarding evidence will materialize in a decision against the defendant that is not supported sufficiently so as to leave no doubt as immovable to its meaning, the evidence underlying the conviction.
26 - There is a particular defendant reprehensibility was up to the victim, with the special duty not to commit the crime and even to avoid the result through appropriate action, under a special duty to ensure (cf. TAIPA OAK, Comment ..., p. 846 ff.) and secondly, that both defendants committed the crime against particularly defenseless person, by reason of age, adding to it, and with regard to one of the defendants, the fact to be the uncle of the minor, which on the one hand, gave him a special duty, though not comparable to the parent, to ensure the health and welfare of her niece, and also the fact that they both acted against smaller, practicing acts of considerable violence on her.
27 - cicunstancialismo This, together with the circumstances set out in standard examples (a) and b), no. 2, the defendant in the case L, and b) if the defendant J, a special show reprehensibility, plus a fault that qualify the crime of murder, but only by those points, not also by d), because, not knowing what the motive that led to the crime, can not be ignored that reason classified as frivolous or clumsy.
28 - The crime of murder and is punishable only by way of deceit, befits this in all its forms and therefore also with the eventual intention
29 - Taking the crime was committed with intent possible, according to actuality proved, ie, the weaker form of deceit, that fact can not but have considerable effects on thirst for determining the sentence.
30 - Although it is highly objectionable manner in which the defendants acted, with the addition of reprehensibility already reflected in the choice of the type described and having worthless circumstances in which the defendants acted either to the worthlessness of such conduct, whether those of the disvalue attitude of the staff, were responsible for the evaluation of the facts, the same can not be re-valued based on the determination of specific penalty within the criteria of art. 71. Of the PC, under penalty of infringement of the principle of prohibition of double valuation.
31 - Taking the accused slashed the victim's body, which put him in a freezer drawers and with the disappearance of these remains, leaving no trace of them, and successively eluding law enforcement authorities about its location, it is appropriate that the penalty concrete to secure the maximum specified in art. 254. Of the PC, because besides the blind, there was also desecration of a corpse and a particularly objectionable.

Decision Full Text: Agree the Supreme Court of Justice:



Proc. n. ° 363/06-5 (1)



I. REPORT
1. "AA" and BB were subjected to trial in the Court of Jury, in the district of Lagos, pronounced by the co-authorship, in competition real, a crime of murder, and will be punished by art. Paragraphs 131. ° and 132. ° , n. 1 and 2, als. a) b) d), a crime of concealment of a corpse, pp by art. 254. °, n. 1, al. a), and another crime of desecration of a corpse, pp by art. 254. °, n. 1, al. b) all C. Criminal.
By judgment of 11 November 2005, the Court decided to order the jury:
A - AA:
I-as a co-perpetrator of the crime of murder, pp by art. Paragraphs 131. And 132 °. ° n. 1 and 2 b), both of C. Criminal penalty in eighteen (18) years imprisonment;
II-like co-perpetrator of a crime of concealment of a corpse, pp by art. 254., No. 1, al. a) the C Criminal, the penalty of twenty (20) months imprisonment;
III-accumulation of penalties and these penalties, a single penalty of nineteen (19) years and two (2) months imprisonment;
B - BB:
I-like material co-author of the crime of murder, pp by art. Paragraphs 131. And 132 °., No. 1 and 2, a) and b), both of C. Criminal penalty in nineteen (19) years imprisonment;
II-like material co-author of a crime of concealment of a corpse, pp by art. 254., No. 1, al. a) the C Criminal, the penalty of twenty-one (21) months imprisonment;
III-accumulation of penalties and these penalties, a single penalty of twenty (20) years and four (4) months in prison.

The remainder was attributed to them the defendants were acquitted.

2. At the hearing the public prosecutor in Portimao required, "for complete explanation of the facts, to proceed to the viewing audience in the video recording of the reconstitution of the facts established on 25.09.2004." Given the word to supporters of the defendants for the same has been said that "the defendants have not provided statements and diligence investigation performed in headquarters has no probative value unaccompanied by other evidence produced in open court, and should not be granted the request of the Ministry learned Public. "
The trial court then the following order: "By understanding that the reconstitution of the facts is an evidence legally admissible on the provisions in art. Paragraphs 126. And 127. Of the CPP and to understand that it may seem useful for the discovery of truth and good decision of the case to the grand jury to grant the request of prosecutors. "
Both defendants appealed that order dictated by application to the minutes and at the end of this session, "was envisioned the video recording of the facts established on 25.09.2004."
The appeal of the defendant was not motivated AA time and therefore has not been received, but the defendant was allowed BB to rise to what would be brought against the final decision.
And the motivation of this interlocutory appeal (by whose decision the defendant has expressed interest in keeping sentencing feature of Judgment - art. 412., No. 5, CPP), the same conclusion as follows:
1 - Assuming, in law, the Defendants innocent, and determining the Code of Criminal Procedure, rules of evidence in Audience Discussion and Judgment, could never have been, during the trial, the film appears recorded during the survey, in which the co-defendant AA participated in due diligence inquiry, talking, when we in the trial, of using his right, did not provide any statements.

The Source seems to have gone off-message:


"Everything leads us to believe that this was a violent and crime caused by futile reasons, relating to issues of ownership of small sums of money that the victim had," he said.

So, scrub the depravity, the motive was changed to the child having small sums of money? I see.

2 - The headquarters of the taking of evidence is the trial, and the act allowed by the learned court "a quo" directly contravenes the provisions of Article 357 of the Code of Criminal Procedure, leading, in addition to the impermissible act invalid, the invalidity of any decision, if there were to a conviction, namely, by complete absence of evidence, and poor conclusion by the jury, influenced by an act void.
3 - The display of film does not appeal counts as evidence, the Court can not consider it as such and display of such a film, against the express rules of procedure, death hurts whole trial, which is the Court of Jury, beyond that is the null value, obviously.
4 - In this case, are being tried in court Collective INTERVENTION WITH THE JURY, the Defendants BB and AA, which, using the law that assists them, chose not to testify at trial that Defendants are not Reproduction is permitted on statements by the Inquiry.
5 - The Court of Judges is composed of three judges of law, and four citizens, randomly selected from voter lists, which have no legal training, and understandably unaware of the production rules of evidence in the seat of judgment, that there protect them from any defect in the Decision.
6 - The Law of Criminal Procedure defines the rules of production of Proof at Trial Hearing, denying reproductions, in particular, statements of Defendants, during the Inquiry, when not provided on Trial.
7 - The only matter to consider is that should be discussed in the seat of judgment, and are the only evidence admissible and null all contrary to the requirements of the Code.
8 - Is the production of evidence, whose seat is the only trial, which should lead to answers, which fulfill the procedural rules in the CPP.
9 - It is clear, and offers no defense that any statements of Defendants, in place of inquiry, can not be used at trial and may not be reproduced, if they chose not to testify, in the exercise of law that the Law gives them.
10 ° - The Application of the learned prosecutor would be shown towards a film in which the AA co-defendant speaks - says - about the subject matter of the Inquiry, and performed during that stage of the proceedings.
11 - The Defense, including the appellant, opposed the display of this film, Audience Discussion and Judgment, which has not been approved, led, immediately, was brought the relevant action before the Supreme Court, that is now motivated.
12 - The learned court "a quo" ordered the screening of the film, made during the survey, which contains statements that the Defendant in Trial, chose not to give any statements, violating the rule of Article 357 of the CPP.
13 - which is known as the co-defendant of either Applicant did not speak in judgment, and nothing required, never learned the Court could allow the screening of the film, as he did, contrary to a statutory provision, which admits of no other interpretation, the risk of influencing the jury, that the Criminal Procedure do not understand.
14 - It was a serious breach of Article 357 of the CPP, because the learned Court is well aware that this could never be admitted as evidence, but more serious, because, while dealing with is a jury trial, they could, and hopefully not be influenced, and decide against the most elementary rules of justice, making a decision NULL, with all that this implies.
15 - The fact is that, even though not worth as evidence, the film was viewed, the jury saw it, and the lack of legal training, can lead them to ignore the rules, which, incidentally, are unaware of, and complete a blame when it is complete absence of evidence, and when another decision that is not an acquittal, would never have lugar.16 ° - In court, the rules require that only certain tests are allowed, valid, those that are admissible, and THIS, do not is, of course, so is doomed to nullity, is void as any decision involving sentencing.
17 - If the Jurists, becados or robins, and others, you know, the jury, those elements of people, drawn from the lists of voters, who have no legal training, may be influenced, and give as evidence that it ever be against the most elementary demands of the production of proof, so vitiating the entire trial.
18 - not worth the indirect testimony, the "told me," those in the testimony provided by third parties, to professionals in the exercise of their profession, nor the statements made in Inquiry by Defendants, that in the seat of judgment, not testified. If the jurors do not know, the Lawyers know it.
19 - I should not have been admitted to show the film in question, the learned court "a quo", while it is permitted, violated the provisions of Article 3570 paragraph 1 of the Criminal Procedure Code, whose consequence is the inadmissibility of validation such as evidence, and also as a consequence, the addiction of Decision based on the findings of fact by the jury, and that whining, entail the nullity of the judgment, besides the need for acquittal of the Defendants, to return to freedom in the days of reading the judgment of the learned.
Terms under which, should the present Appeal is upheld, therefore if the learned Order revoking admitted that the screening performed in place of inquiry, and with all other legal consequences.

3. The prosecutor in a trial court responded to this interim action and concluded as follows:
1 - The motivation of the appeal does not show performed in obedience to the provisions of art. 412 of the CPP, since the conclusions are nothing more than mere reproduction of the motivation, just their being numbered paragraphs;
2 - There was no violation of Art. 357 of the CPP, because they did not carry out any reading of statements previously provided by the defendants;
3 - The court only envisioned the restoration of self as a part of the defendants (other than the applicant), accompanied by his illustrious defender unofficial and thus with all the guarantees of defense;
4 - The race for reconstruction should not be confused with proof for statements, with different objectives and formulation;
5 - From what was not violated the rule of law relied upon, nor any other;
6 - The criticisms that are made to the jury are irrelevant and inconsequential, not going to criticize an institution under the Constitution, it is not legitimate to raise suspicions as to the suitability of the jurors only by the same judges are not necessarily career.
For, in the opinion of the prosecutor, should refuse the appeal brought by the defendant BB.

4. The prosecutor, the defendant accused AA and BB, in that order, appealed the final judgment.

A - The prosecutor concluded that:
1. The prison sentences imposed on defendants AA and BB sin default;
2. Not properly correspond to the gravity of the crimes committed by both, the mode of their execution, the quality of the victim, the sentiments expressed in the execution, the subsequent conduct of the defendants and the psychological characteristics of these;
3. Having been thus violated the provisions of art. Paragraphs. 40 and 71 of the Criminal Code;
4. Being required to impose penalties concrete than quantitative, since the aim of reintegration into society of the agent-to be there, in each case pursued by the imposition of a sentence whose kind and extent determined by criteria derived from the requirements of special prevention , is shown to be appropriate and required by the needs of socialization agent, or the intensity of the warning which will prove sufficient to accomplish such purposes;
5. In this case, the penalties actually imposed are in direct opposition to the expressed reasons for their choice, and translated by the phrase "you will hardly find a murder case in which the action of the defendants is more serious and desvaliosa"
6. Never one to predict that benevolence shown by the panel of judges and jurors - by requiring defendants to sentences near the midpoint between the minimum and maximum expected
for the crime of murder, below this midpoint in the case of defendant AA, contribute to the effective rehabilitation;
7. Much less in terms of general and specific deterrence;
8. And even less so when, as follows from the expertise of the persons accused - and was established as a fact - the defendant AA manifests contempt for human life - the result of social maladjustment and emotional coldness - and has difficulty with trends anti-sociais/psicopáticas control of impulses, which leads him to be aggressive, trying to resolve conflicts through such aggression, feeling no remorse for the consequences of acts that so conducts, trampling on the rights, wishes or feelings of others, and defendant BB manifest social behavior deviant in terms of norms, values ​​and responsibilities, emotional instability and difficulty in expressing frustration with their socialization marked by interpersonal relationships immature, superficial and narcissistic, which are salient features of manipulation (to meet their own needs) and aggressiveness ( particularly sadistic tone), stressing in his personality the absence of empathy and insensitivity, which leads to contempt for the rights of the defendant, needs and feelings of others, for those driving their aggression, and poor ability to feel remorse. Has borderline personality traits with anti-sociais/psicopáticos, narcissistic and schizoid.
9. Before becoming necessary, in obedience to the legal provisions mentioned above, such serious penalties;
10. Understanding that even in the case of the crime of concealment of a body should the defendant be punished by the maximum provided by law, bearing in mind that this crime turned out to be encompassed by acts, which individually constitute the crime of desecration of a corpse;
11. Because although the penalties to be imposed on defendants should be the same amount, since, if the punishment of the defendant BB should be more severe by having been the victim of his actions to his own daughter, I must not forget is that the defendant AA already has a criminal record precisely in the area of ​​crimes against life.
12. And here the learned judgment should be amended so as to defendants be imposed the following sentences:
- The defendant AA, imposed a single penalty of 23 (twenty three) years in prison, resulting from accumulation of penalties between the sentences:
- 22 years in prison for a crime of murder, p. and p. in the art. paragraphs. 131 ° and 132 °. paragraphs. 1 and 2, al. b) and
- 2 years in prison for a crime of concealment of a corpse, p. and p. by Art. No. 254, No. 1, al. a), both the Penal Code.
- The defendant BB imposed a single penalty of 23 (twenty three) years in prison, resulting from the accumulation of penalties of feathers:
- 22 years in prison for a crime of murder, p. and p. in the art. paragraphs. 131 ° and 132 °. paragraphs. 1 and 2, ais. a) and b), and
- 2 years in prison for a crime of concealment of a corpse, p. and p. by Art. No. 254, No. 1, par. a), both the Penal Code.

B - The "BB" concluded that:
1 ° The Accused BB, Applicant prays, maintains, in full, timely brought at Appeal Hearing Discussion and Judgment, which remain valid, and that should be enjoyed with this, with legal consequences.
2 The Accused BB does not have to produce proof of his presumed innocence does not come to condemn, which, inter alia, despite having embodied pants, black blouse had, or because they asked in the past, responded in the same terms is not admissible unfounded interpretations of Articles 129 and 356 ° -7 ° 357 of the Code of Criminal Procedure clearly violated.
3 ° When the Court is only legitimate to decide based on evidence properly produced at home to talk and Judgment, which must be recorded, in obedience to the shed in Articles 32 -2 CRP, -7 and 356 °, 357 ° and 124 ° and Seg.s, and 363 ° of the CPP, and invalid indirect evidence, reproductions of statements made in place of inquiry, particularly as regards those which have been founded on the conviction of the learned court "a quo", so that there insufficient facts to decide, and much less to condemn, in addition to noticeable error in the assessment of evidence.
4 The hearsay evidence, which formed the conviction of the learned court "a quo" is inadmissible under Article 129 of the CPP, which also violated the provisions of Articles 356 and -7 ° 357 ° of the CPP, so that no other, and essential elements, could not the learned court "a quo" that sentenced Appellant prays that must be acquitted, deserving providing this resource, verifying have been wrong assessment of evidence against the legally established, not constituting testimony of PJ inspectors, who heard certain testimony, nor the other, others, who say they have spoken and heard of the Defendants ....
5 ° The indirect evidence, or hearsay, depends on confirmation, which never happened, why it can not be considered.
6 ° The principle of free assessment of evidence poured in Article 127 of the CPP, must have a factual support that in particular, does not exist, and the analysis of all elements, the only decision to be taken, should have been an acquittal of the moment applicant by the absence of obvious facts, and valid evidence to support it.
7 There is no exception to the principle of compulsory registration of proof poured in Article 363 ° of the CPP, so no documentation of the statements made orally at hearing, violates this provision, beyond that the Accused denies the constitutional right to appeal in fact - art. ° 32 ° -1 of CRP, which determines the repetition of Judgment, pursuant to Articles 410 ° 2 and 426 ° No. 1, both the CPP, whose consequence is the return of the process to repeat Judgment.
8 The implementation of the Judgment should not allow influences in the formation of the conviction of the judges in this case, Panel of Judges and Jurors, four in number, and reproduction that are filed Appeal may have interfered with the conviction of the jury, who do not know what kinds evidence, direct or indirect, are valid for the assessment of the cause

9 may not be reproduced statements of Defendants, who chose to exercise the right not to testify, under penalty of violation of Article 357 of the CPP, and indirect evidence is inadmissible under the provisions of Article 129 -1 CPP, and the learned court "a quo" formed its belief without facts on the one hand, so hopelessly contradictory, on the other, and based on evidence legally invalid and can not leave the judgment to be canceled.
10 ° in doubt, or in the absence of certainty, it is the acquittal of the Accused, in obedience to the Principle "in dubio pro reo," and, absent the least sure that the BB has practiced for the actuality that came sentenced in scholarly judgment, to revoke, for providing this feature.
11 Statements of co-defendant does not count as testimony or as evidence, nor for itself or for co-defendant, so that references to any reconstruction, in which the Applicant did not participate, can not be treated as evidence, the that will determine the annulment of judgment, beyond all else.
12. Not on the Minutes that were allowed their inquiry of inspectors P. J., are not worth such statements pursuant to paragraph 7 of Article 356 of the Code of Criminal Procedure.
13 ° by failing to record the evidence produced in Audience Discussion and Judgment, the learned court "a quo" practiced an unconstitutional for violation of Article 32 -1 of CRP, and denied the Defendants the Right of Appeal Matters of Fact, and that it breached the provisions of Article 363 ° C. P. P., it is not possible to overcome such nonentities, without any repetition of the trial.
14 The learned court "a quo" analysis of the facts did wrong to ignore the questions put to BB, in the interview referred to, were made in the past, who wore scarlet trousers as well as other conclusions to which we refer in particular above when he concluded that CC came home, just because the neighbor who saw her pass did not hear screams or saw cars, in addition to felony sentencing, after not being given by proven intent to kill, in particular, another consequence it is not possible for the court to repeat the process of judgment ..
15 ° The learned court "a quo" would have acquitted the Accused BB, Appellant herein, in light of the obvious questions, and lack of sufficient evidence, properly produced, in observance of the principle "in dubio pro reo", since, Judgment, and everything else, no certainty resulted that the Applicant had committed, or participated in the factuality of what came to be convicted in a first instance, can not be concluded, given the facts, trespass, for which proof nothing exists.
16 ° In convicting the appellant, rather than to acquit, as it should have done, deciding as it did, the learned court "a quo" violated the Principle of Presumption of Innocence - in dubio pro reo - the provisions of Articles 32 paragraphs 1 and 2 of the Constitution of the Portuguese Republic, 356 -7 °, 357 ° 127 ° 128 ° -1, 129 -1, 133 -1 a) -1 136 ° and 363 ° of the Code of Criminal Procedure, in particular.
17 In addition, and as stated above, there are insufficient facts to the Decision, insurmountable contradiction of the grounds, and error apparent on examination of evidence, therefore, pursuant to Articles 410 ° 2, a) b) c) and 426 of the Code of Criminal Procedure, it is not possible to decide the cause, should be sent back to repeat the process of judgment, if it deems not to revoke the learned now in Appeal Judgment, and replace it with another who absolves either the Accused Appellant.
In these terms and others that EXAS Vs. doutamente will supply, unless the scholarly judgment of fls. canceled and returned to repeat the process of judgment, and deal with any alleged nullity, moreover, of its own motion, that is required, should the scholarly judgment under appeal be repealed and replaced by another who acquit the Accused BB, Applicant prays, and thus determine its immediate return to freedom.

C - The "AA" concluded that:

1. At stake is the freedom of a human being, who is presumed innocent until the judgment becomes final and who assists in case of reasonable doubt, the principle in dubio pro reo.
2. The criminal procedure, legal and procedural standpoint, has the purpose, the application of criminal law to individual cases, the discovery of material truth and the realization of justice, by means procedurally permissible.
3. Force the principle of presumption of innocence, according to which, in case of doubt as to the evidentiary matters, the decision should be more favorable to the defendant, implying the inadmissibility of the presumption of guilt.
4. The presumption of innocence, as a corollary of respect for human dignity requires that the prosecution is fair, and not to be so, with preferential treatment of any evidence, even if it be a confession, as is apparent the provisions of art. Article 344 of the CPP
5. The silence of the accused is a right, enshrined in Art. Paragraphs 61, paragraph 1 c) and 141 paragraph 5 of CPP
6. The exercise by the defendant of his right to silence can never disadvantage, as is clear from the provisions of art. Paragraphs. 343, paragraph 1 and Article 345 paragraph 1 of C.P.P..
7. Is in place prohibiting the defendant be used as evidence in the art. No. 141 paragraph 5 of the CPP, which sought to that is guaranteed freedom of the defendant to pay or not statements and that paying them, you are not required to tell the truth.
8. The CPP defines non-derogable rules of evidence in open court discussion and judgment.
9. Not worth at trial, including training for the conviction of the Court, any evidence that have not been equally validly, produced or examined at the hearing, cf. art. 355 ° paragraphs 1 and 2 of the CPP.
10. Refusing the defendant to testify in open court, reading from the file containing their statements is prohibited, cf. follows the provisions of the aforementioned art. 357 of the CPP.
11. The defendant appellant and the co-accused are being tried in Court with the intervention of the Jury Panel.
12. In the use of his right, the defendant, on hearing of discussion and trial, did not speak.
13. Neither used the college, who also assists him, to require the reading of any statement that has rendered earlier, cf. art. 357, paragraph 1 al. a). CPP.
14. It was intended, with the invocation of the alleged "reconstructions", performed early in the investigation, playing at the same hearing, the statements made by the accused appellant based on the same IP.
15. It is thus clear violation of the provisions mentioned in art. 357 of the CPP.
16. The alleged "de facto reconstructions" are, in essence, no more than declarations of the accused provided in place of inquiry.
17. Being as such, prohibited its reproduction by any means, in audience discussion and judgment, pursuant to the aforementioned art. 357 of the CPP, since the same defendant, with full use of the rights they enjoy, in place of the hearing for discussion and trial, refrained from giving any statements nor the required, but would be their prerogative.
18. Nothing should reveal the name given to the investigation, though the form might be found eventually in line with the same, otherwise the look and formality take precedence over their true nature, a clear breach of the law, is hindering thus the prohibition inherent in that art. 357 of the CPP.
19. Neither the presence of the defender will ensure their legality and validity or the truth of what those "reconstructions" resulted.
20. Under paragraph 7 of art. 356 ° of the CPP, to which it refers to paragraph 2 of art. 357 °, is not permitted to reproduce the contents of statements whose reading is not authorized to the use of those who have collected, as appears from the valuation made to document and witness Inquirer the same diligence fls. 1885, which is the legal consequence of nullity, that can never be validated as proof or valued as such for sentencing purposes.
21. Giving is proved by the fact that referred to in subparagraph a), the scholarly judgment under appeal is completely silent on the evidence that formed the basis of conviction to the formation of the Court, in complete violation of the obligation to state reasons, cf. available to art. paragraphs 374, paragraph 2 and 379 º a) of CPP.
22. As for the final part of the point q), established as a fact, collide in clear opposition with the fact that poured into 5 - given as unproven.
23. It is an undeniable insurmountable contradiction between the rationale and the reasoning and decision, as well as a noticeable error in the assessment of the evidence, cf. provided for in art. No. 410, paragraph 2 b) and c) of the CPP, the decision by voting either defendant to nullity.
24. Mindful of the facts that have charged the accused, taken by the facts proven and unproven, are, in most indelibly different from those without, to the best opinion, it makes full critical appraisal of them.
25. An example is section 87 of the pronunciation - "Forgetting to keep the shoes in the bags that had smaller shoes, so all your pairs of shoes left in the house," while the common ground as proven refers "to) the Defendants do not put the shoes that had the smallest shoe bags, having stayed home all pairs of shoes that used the least that summer. "
26. It is undisputed that, although on the same topic, which was considered evidence differs widely from the imputation of pronunciation.
27. Would, therefore, to draw the conclusions cool.
28. It is understood, therefore, might be an unequivocal failure of prosecution, under c) of Art. 379, paragraph 1 d CPP, which is the legal consequence of nullity of the sentence.
29. The same applies to point aab) against section 105, the defendant often spoke of her daughter in the past and was wearing black blouse is arguably different from being "in mourning" as intended in the pronunciation.
30. It is no mere lapse because it is, it was also envisioned that interview in place of the trial, it was found that the defendant actually spoke of her daughter in the past, moreover because the interviewer's questions were put to him at the same time verbal, and instead of mourning, the defendant was wearing black blouse and, moreover, red pants.
31. Concluding, therefore, we are faced with a clear omission of prosecution, under c) of Art. 379, paragraph 1 d CPP, whose legal consequence is the nullity of the sentence, being to draw the consequences legal thereof charged as such, meets evidence.
32. The same applies with regard to points 12, 16, 21, 24, 30, 31, 41, 47, 51, 52, 53, 54, 57, 59, 60, 68, 69, 73, 80, 83, 91, 96 , 107, 113, 114, 117 and 125, in contrast with the facts found and the facts which is not proven on the same topic and there is therefore a clear omission of prosecution, under c) of art. 379, paragraph 1 d CPP, which is the legal consequence of nullity of the sentence, leaving out the legal conclusions that the discrepancies impose.
33. It consists of a clear omission of pronunciation, often dominated with invalidity for violation of the provisions contained in art. Paragraphs 374, paragraph 2 and 379 ° c) of the CPP.
34. Furthermore, if a particular fact has not been proven, it is not reasonably concluded or presumed that proved to be the reverse, and vice versa.
35. You can not convict a defendant based on assumptions that are not evidence, but simply means logical or mental, for violation of normative constitutional contained in art. Article 32, paragraph 2 of the CRP.
36. To the contrary, given the same actuality, we will always have a conviction for acts other than those described in the indictment, which under subparagraph b) of paragraph 1 of Art. 379 of the CPP, results in the nullity of the decision here under challenge.
37. It manifests the existence of defects in the art. No. 410, paragraph 2 of the CPP, including lack of raw factual, insurmountable contradiction in the grounds and among the reasons and the decision and error evident in the appreciation of it, the rest of its own motion the Court "ad quem ".
38. There remains, therefore, reasonable doubt as to liability of the defendant by the facts that is accused.
39. For all the foregoing, it had to be different decision.

40. In fact,
41. Never could the court "a quo" decide how to decide.
42. So deciding,
43. The court "a quo" violated ínsito in art. 357, paragraph 1 of the CPP, which is the legal consequence of nullity, that can never be validated as proof or valued as such for sentencing purposes.
44. The court "a quo" has violated the provisions of paragraph 7 of art. º. 356 ° of the CPP, which refers to paragraph 2 of art. 357 ° of the same law, which is the legal consequence of nullity, that can never be validated as proof or valued as such for sentencing purposes.
45. The court "a quo" violated the principle of presumption of innocence enshrined in the Constitution art. No. 32, paragraph 2 of CRP, not applying the law in the circumstances cominadas
46. Verifying the existence of the vices of art. No. 410, paragraph 2 of the CPP, it is necessary to determine the annulment of the judgment to operate the supply of them and their overdrive.
47. The learned contested judgment suffers from insurmountable nullity for lack of evidence indicating that served to form the conviction of the judge, who find themselves violated the provisions contained in art. Paragraphs 374, paragraph 2 and 379 º a) of CPP.
48. Is zero the scholarly judgment under appeal because it contains the list and all facts relevant to the decision of the case, proven and unproven, this time those in charge, in clear violation of the cited art. Paragraphs 374, paragraph 2 and 379 ° point a ) of the CPP, all essential to the characterization of the crime and its circumstances legally relevant to the qualification of the crime or, where appropriate, to graduate to the defendant, and that follows, therefore, the provisions of art. No. 368, paragraph 2 CPP.
49. And omission of pronunciation, often dominated with void for violation of the provisions contained in art. Paragraphs 374, paragraph 2 and 379 ° c) of the CPP.
50. To the contrary, given the same actuality, we will always have a conviction for acts other than those described in the indictment, which under subparagraph b) of paragraph 1 of Art. 379 of the CPP, results in the nullity of the decision here under challenge
51. From the foregoing,

I am shocked all over again. Both of The Ciprianos were beaten because Amaral decided that they were guilty. And The Court actually accepted this shite without one scrap of Provable Evidence. Third World hardly describes this.
But silly old Gonc decided that if it worked the first time then why not try it again.

Most of what The PJ had to say had no basis in fact, but they weren't even asked to prove what they said. Everyone just believed them. This is so awful.

52. The contested decision must be replaced by another that determines the annulment of the judgment and repetition of the same, determining the return process for a new trial.
53. Terms in that checked all the foregoing and more than V EXAS. doutamente will supply, because it is only fair, should the appeal is upheld, with all the legal consequences.

5. The prosecutor said the appeal of the AA and concluded that:
A. The judgment does not deserve any blame, except as specifically referred to the penalties imposed on defendants, on the terms mentioned in the appeal by prosecutors.
B. Indeed, the assessment was correct on the evidence produced in place of the hearing, which, together with other documentary evidence and expert listed in the records, good as with the rules of common experience, which led to the establishment of the facts proven and of which not proven;
C. Since the result proved, for fulfillment of their objective and subjective elements, the integration of conduct of the defendants in the types of crime they were convicted.
D. Defendants, except defendant BB - does just that at a given time and in very small letters - never deny the commission of offenses, but merely trying to set aside the judgment sentencing for formal reasons.
Try this - try - should not pass.
E. In fact:
EI was not observed, contrary to the claim by the appellant AA any breach of art. 357 of the CPP to be allowed in the hearing, the viewing of the video recording of the reconstitution of the crime made by the applicant.
For such a viewing was not even used to justify the decision, as this explicitly mentioned.
As far as this part of the action has become devoid of purpose (which until this feature was not the proper place to mention this matter, being the only applicant for not having timely filed interim motivated feature).
E.II. Since its reconstitution never be confused with statements that the defendant participated in it, not being invoked Art. 357 of the CPP.
Before forming an autonomous test, in which the defendant - that the date was prepared to cooperate with the investigation - the act reproduced, along with co-defendant, BB carried out, making its goal of self registration form as the act was reconstituted and could be observed by those who attended the same.
As to value, since - as it happened - in connection with other evidence.
E.III. The fact that the trial has elapsed with the intervention of the Jury Court, as permitted by the Constitution and ordinary law can not lead to unpreparedness invoke any legal basis for the jury how - so criticizing the Constitution of the Republic - said to have condemned those wrong, or by suggestion.
E.IV. The reconstitution was valid, having been determined by verbal order reduced to writing, having participated in it the defendant's Distinguished Advocate (which now shares the motivation of appeal), it has never invoked any irregularity in its realization.
Neither the date nor place of instruction, or at trial. Only doing now, so that any irregularities would be remedied in accordance with Art. 123, paragraph 1 of the CPP;
EV Much less can come now plead invalidity of that rebuilding, saying their presence is not guarantee of the legality of the act and claiming to have been a kind of torture exerted on the defendant ...
Under penalty incurred understand that illegal disciplinary for failing to then - contrary to what was required by its Statute - the defense of his client's interests.
Much more so when it also ends up charge punishable under disciplinary action and even criminal on the prosecutor and criminal investigation police officers present at the time.
Well knowing that the defendant was now fully conscious, freely cooperating in the reconstruction.
So much so that at any given moment ceased after this collaboration, at their request - immediately accessible - talked with the Defender.
And insofar as the contents of that cooperating reconstruction was corroborated by various evidence collected in the records, including several statements which was coincident paying later.
So inconsequential the application for invalidity of such evidence.
E.VI. How inconsistent the application for invalidity of evidence resulting from the testimony of criminal investigation police officers who were present in this and another reconstitution carried out and on the document prepared by the defendant that this draws the instruments used for cutting the remains of the ill-fated DC .
Because this does not violate, unlike invoked the provisions of art. 356, paragraph 7 of the CPP, which only happen if such testimony of police officers had learned about statements of the defendants, which was not done.
Before having learned - as the judgment - and was valued the testimony of such elements of PJ as regards the manner and terms under which such evidence was gathered.
E.VII. Inexistiu also no insurmountable contradiction in motivation due to not having understood as the failed DC traces collected by the technique and understanding of projectina be their traces of human blood collected in the house where the facts took place, or between this conclusion and the that, by the action of cleaning carried out by the defendant BB, it was not possible to determine the DNA of such blood.
This was because over many other evidence that ended up being one of the smallest blood that was collected at home, in no way related with these blood traces collected by the technique of projectina (which raises other bodily fluids).
As if only the alleged contradiction could exist if there were, in turn, laboratory elements that depart the possibility of blood belonging to the victim, which was not done.
There are so any contradictory data as proven facts in this matter.
E.VIII. The omission of evidence as to whether the defendants are brothers to each other's claim must also be rejected, since this is the result of his own identity at the hearing.
Never taking, rather than intended, the annulment of judgment. At most - the meant by such a need (which is not there - neither the applicant ever denied the veracity of this relationship ...) this would only justify the need to add to the file of birth of their seats ...
E.IX. As regards the actual existence of a contradiction between a proven fact and one not proven - to have the failed DC about 3 years old at the time, the second time, the defendant BB tried to deliver it to his father - this corresponds the apparent lapse.
Period that has not been remedied (as requested by the MP at the beginning of this response), never mind the intended revocation, for which talks just about that school, not facts about the integrating of the crimes for which the applicant and his brother were convicted .
E.X. The facts given by proven and unproven, as they were, did not matter - although some aspects have been different wording used in the judgment of what had been used in place of the indictment - material change.
For that, apart from not being able to demand that judges are mere copyists, such changes only resulted from the evidence produced at trial established, and is even beneficial for the defense, not hurting.
Never reaching the figures of substantial or not substantial change in the facts set out in art. Paragraphs. 358 or Article 359 of the CPP, which only occur when such factual changes are, or likely to lead to conviction for a crime different or aggravation of maximum penalties (Article 1, al. F) of the CPP), or at least (if the amendment is not substantial), when they have "relevance to the decision of the cause" (as referred to paragraph 1 of art. 358 °).
This emphasis did not exist - neither the applicant demonstrates minimally - and therefore becomes inconsequential the invocation of "omission pronunciation" that would lead to invalidity.
E.XI. As we can not understand have been the defendant / appellant convicted solely on the basis of presumptions, persisting reasonable doubt as to criminal responsibility.
This is because - in addition to, remember, not even be alleged by the appellant's innocence - his conviction resulted from the collection of evidence collected, which, combined with the rules of the experiment (in which actually enter the presumptions as rules of natural experience allow the Court to draw inferences of fact known to acquire an unknown fact, when a fact is a typical consequence of another), led to the conviction of the free judges about their guilt.
Conviction free but not arbitrary, as is apparent from the extensive and detailed reasons for the decision in which he describes how it was formed, being always benefited the accused in cases where there was doubt about matters contained in pronunciation (as was the case the reason crime in which the only doubt benefited, being cut off one of the qualifying crime).
F. As I have rejected all the allegations raised in this appeal by defendant, maintaining instead a scholarly contested decision (always save what regards concrete sentences imposed on defendants in the manner referred to in the appeal by the prosecution) .

The prosecutor said the appeal of BB and concluded that:
A. The judgment does not deserve any blame, except as specifically referred to the penalties imposed on defendants, on the terms mentioned in the appeal by prosecutors.
B. Indeed, the assessment was correct on the evidence produced in place of the hearing, which, together with other documentary evidence and expert listed in the records, good as with the rules of common experience, which led to the establishment of the facts proven and of which not proven;
C. Since the result proved, for fulfillment of their objective and subjective elements, the integration of conduct of the defendants in the types of crime they were convicted.
D. Defendants, except defendant BB - does just that at a given time and in very small letters - never deny the commission of offenses, but merely trying to set aside the judgment sentencing for formal reasons.
Try this - try - should not pass.
E. In fact:
E.1. There can, therefore, try to charge to the jury and the media condemnation of the applicant.
The Court of Jury is expected in the fundamental law, it is not legitimate criticism of the alleged 'lack of legal training "of its members to try to justify the conviction because, precisely because it is the principle of such a Court, nor shall than mere speculation to say they were not those jurors and judges who made the same court which decided in that direction.
The media, on the other hand, has not had the influence that you want to - just to see that the condemnation was not even in those 25 years "or more" which, it is alleged, was already established by its influence.
E.2. Failure to display photographs of defendant BB (which is not listed in this case) was never applied, so it's inconsequential now claiming the lack of displaying them at the hearing.
Unless you want to explain that, contrary to what is read in the media, have actually resulted from falling defendant / applicant on the steps of the premises of the Judicial Police and not the action of any element of this entity. It is expected that the assumption of the process running on the subject.
E.3. The viewing audience based on a reconstitution of the facts on which the defendant participated in AA is a matter already dealt with on appeal independently.
Since this matter was eventually superseded by the fact that the panel did not - as expressly stated in the judgment - used as a basis for viewing your conviction.
Therefore, this part, lacks the ability to object.
E.4. This reconstruction can never be confused with statements that the defendant participated therein, is not enforceable any violation of Art. 357 of the CPP.
Before forming an autonomous test, in which the defendant - that the date was prepared to cooperate with the investigation - the act reproduced, together with the appellant, carried out, constituting its self the objective record of how the act was reconstituted and could be observed by those who attended the same.
As to value, since - as it happened - in connection with other evidence.
E.5. This is mere speculation to say inconsequential now that the viewing of reconstitution (allied to what they read in newspapers) will by itself lead to damnation.
Just read the reasoning of the judgment to remove this idea that seems to want to lead to the conclusion that the trials, particularly with jurors in question and when facts are reported in Media, are only fair when acquitting the defendants.
E.6. There may also be confused with statements of the accused to prove that is independent reconstitution of the facts.
Much less, based on this intended confusion, to speak of conviction based on statements of co-defendant. This is because not used any statements of the co-accused to form the belief, held prior to production of evidence by a defendant in the same physically described what happened and led to the death of the ill-fated DC.
E.7. As is also inconsequential the request for revocation of the evidence resulting from the testimony of criminal investigation police officers who were present in this rebuilding carried out, since it does not violate, unlike invoked the provisions of art. 356, paragraph 7 of the CPP, which can only happen if such testimony of police officers had learned about statements of the defendants, which was not done.
Before having learned - as the judgment - and was valued the testimony of such elements of PJ as regards the manner and terms on which such evidence and others were gathered.
E.8. Never having been by the applicant or the co-defendant, required the recording of the testimony produced in place of the hearing, that they knew not being made, can not now rely on such a lack of recording as "denial of right to appeal" .
For that, you understand to be the case for jury trial by Court of the provisions of art. 363 of the CPP, its failure would be a mere irregularity.
Irregularity that always have been remedied in accordance with Art. 123, paragraph 1 of the CPP, because it was not timely raised.
As determined by the judgment fixing case No. 5/02, published in the Official Gazette, IS-A, 17.7.2002.
E.9. Neither the impossibility of the facts which arises from the fact that the trial has elapsed before the Jury Court (Art. 432 º, al. C) of the CPP) violate any constitutional provision.
In this sense the jurisprudence of the Constitutional Court, which has been successively understood by the non-constitutionality of a system of resources in criminal procedure that allows a single grade for the review of matters of law, without prejudice to the appeal have the grounds as stipulated in paragraph 2 of Article . Article 410 of the CPP.
That being the case these records, you can not achieve dismissed the applicant's request.
E.10. In addition to the above statement as to the validity of the criminal investigation police officers about the facts that they learned through the investigation and also these statements and all other witnesses used for formation of the collective belief in no way violated the legal provisions, particular art. 357 of the CPP.
It is that, as is clear from the learned judgment, not the elements of PJ reported that the defendants 'told them'.
Since two witnesses (the companion of the defendant appellant and another witness, stepfather of), unrelated to the research, pointed to the fact that the defendants told them, such statements being valued, but justifiably - as stated in the judgment, this has been the case law (including the Constitutional Court) where they reported conversations with defendant called to testify refuses to do so in the exercise of his right to silence, so there is no unacceptable shortening of the right of defense of the accused (Ac . of the Constitutional Court No. 440/99, 8.7).
Since, moreover, the judgment has to be established only matter brought before the Court by such witnesses to the extent that such statements found themselves confirmed through other evidence.
E.11. Also, unlike desired by the applicant, there was a lack of support for the factual decision.
Indeed, given the facts as proven itself contains all objective and subjective elements of the types of illicit integrators by which defendants were convicted.
Neither the applicant points out, in this respect (and other ...) any specific point.
Otherwise your desire to see acquitted ... what is common to all defendants convicted ...
E.12. Although neither is, on appeal limited to points of law, the principle sindicável 'em dubious pro reo', it is certain that the learned judgment used this principle correctly, where real questions raised.
Thus, for example, were not understood as proven the facts that would integrate the aggravation of the crime of murder for futile reasons - although there were references to this reason, the collective, in obedience to this principle, has not as proven, thus benefiting the defendants.
E.13. Also with regard to the alleged violation of the principle of free assessment of evidence, lack of motivation in the use of concrete indication of the points on which such claim is based.
Once again it seems to want is to avenge his own - and more than interested - the opinion that "no proof was made."
E.14. The same applies when, in the abstract, ends his motivation and conclusions parading the 'menu' of paragraph 2 of art. Article 410 of the CPP, never indicating what specific points where there is failure to decide the facts proved , which the contradiction - and insurmountable - the reasoning or between this and the decision, which the error notorious assessment of evidence. Much less power such grounds of appeal at any particular point in the text of the contested decision, or this combined with the rules of common experience.
Limited to, once again, to show their discomfort as have been ordered (which is meant as similar in all cases).
E.15. Ultimately refer, specifically, only on some points, disagree with the understanding of the collective. Only it does once again unreasonably, referring understand not being able to understand how normal the minor has returned home only to have already been seen with the same by a witness, 'forgetting' all other evidence that exists on the effective return to home and his subsequent death, or when he criticizes the panel for something that did this correctly, and even for their benefit, when it has proved to be the defendant in mourning, before wearing red pants with ...
All claims once more inconsequential, not worth filling.
E.16. Instead, the Court finds that the conviction of appellant BB as well as his brother and co-defendant AA, held the body of evidence collected, which, allied to the rules of experience, led to the conviction of the free judges about their guilt .
Conviction free but not arbitrary, as is apparent from the extensive and detailed reasons for the decision in which he describes how it was formed, being always benefited the accused in cases where there was doubt about matters contained in pronunciation (as was the case the reason crime in which the only doubt benefited, being cut off one of the qualifying crime).
F. As I have rejected all the allegations raised in this appeal by defendant, maintaining instead a scholarly contested decision (always save what regards concrete sentences imposed on defendants in the manner referred to in the appeal by the prosecution) .

6. Ms. Deputy Attorney General in the Supreme Court has affixed his approval, to argue orally at the hearing.

7. Harvesting the visa was made to the hearing with legal formalism.
The prosecutor, producing oral argument, defended in general the position of prosecutor in the 1st instance.
The defense of the accused, in turn, also claimed in the direction traced by the respective motivations of appeal and whose conclusions are reproduced in two think. and 4.

8. The issues to be decided are:
On appeal the defendant interim BB:
1st - It could have been displayed at the trial the movie recorded during the investigation, in which the co-defendant AA participated in due diligence reconstitution of the facts, speaking, when we in the trial, using the his right, did not pay any statements?
2nd - This frontal view of the video violated the provisions of Article 357 of the Code of Criminal Procedure, also resulting in invalidity of any conviction for lack of evidence and illegal influence in forming the belief of the jurors?

Resources in the final Judgment, the Court puts it, immediately, the following question:
4th - The crimes of homicide, concealment and desecration of a corpse may occur in a case where the corpse, or even part of it was found?

In the main appeal of the defendant BB:
5th - There is no exception to the principle of compulsory registration of proof poured in Article 363 ° of the CPP, so no documentation of the statements made orally in open court violates this provision, in addition to denying the defendant's constitutional right to appeal that - art. No. 32., no. 1, CRP, which determines the repetition of the judgment, pursuant to Articles 410., no. 2, and 426., no. 1, CPP both?
6th - The evidence gathered against the defendant BB, taking into account the value that should be attributed to reconstructions that did not participate and the lack of value of the testimony of hearsay, including the PJ inspectors and other witnesses, are insufficient to impute crimes for which he was convicted, so there is error apparent on examination of evidence, insufficiency of the facts proven to the decision and insurmountable contradiction between the reasoning and decision, in addition to breach of the principle in dubio pro reo?
7th - If that does not understand, to qualify as murder is not justified, since the court did not direct the fraud as proven?

On appeal the defendant AA:
8th - The "restoration" of 25/09/2005 is void and can not be used for violation of provisions of the said art. No. 126 of the CPP, because the defendant was voted in a physical and psychological, which was prevented from rest for more than 80 hours?
9th - The document fls. 1885 is attached and an integral part of an official interrogation of the accused based on the investigation - fls. 1878 - before a criminal police body, in which the witness DD was inquisitive, but under no. 7 of art. 356. ° CPP, which refers to the n. 2 of art. 357. °, is not permitted to reproduce the contents of statements whose reading is not authorized to the use of those who have collected, which is the legal consequence incurable invalid, that can never be validated as proof or valued as such for decision sentence?
10th - Giving is a proven fact that referred to in subparagraph a) (defendants are brothers), the judgment is completely silent on the evidence that formed the basis for formation of the conviction of the Court, and breached the duty of reasons, tax on art. 374 paragraphs., no. 2, and 379., paragraph a) of the CPP?
11 - Section 87 of the pronunciation - "Forgetting to keep the bags shoes that the child was shoes, so all your pairs of shoes left in the house," is different from that shown in the paragraph in): "the Defendants do not put the shoes that had the smallest shoe bags, having stayed home all pairs of shoes that used the least that summer, "so what was considered evidence differs widely from the imputation of pronunciation and the court should have gotten there the necessary consequences, and not having done, incurred omission of pronunciation, which is the legal consequence of nullity of the sentence?
12th - The same applies to point aab) against section 105, the defendant often spoke of her daughter in the past and was wearing black blouse is arguably different from being "in mourning" as intended in the pronunciation?
13th - The same applies also to the points 12, 16, 21, 24, 30, 31, 41, 47, 51, 52, 53, 54, 57, 59, 60, 68, 69, 73, 80, 83, 91 , 96, 107, 113, 114, 117 and 125, in contrast with the facts found, all consisting of a failure to clear pronunciation, often dominated with nothingness?
14th - There is a conviction for acts other than those described in the indictment, which under subparagraph b), no. 1, Art. 379 of the CPP results in the invalidity of the contested decision now?
15 th - It manifests the existence of defects in the art. No. 410, paragraph 2 of the CPP, including failure of fact, insurmountable contradiction in the grounds and among the reasons and the decision and error evident in the assessment of it, so it is necessary to determine the repetition judgment to operate the supply of the same?
16th - The judgment under appeal suffers from insurmountable nullity for lack of evidence indicating that served to form the conviction of the judge?
17 th - the judgment is void because it contains a list and all the facts relevant to the decision of the case, proven and unproven, this time to the charges?
18 th - There remains a reasonable doubt as to liability for the acts of the defendant is accused and that the Court "a quo" violated the principle of presumption of innocence enshrined in the Constitution art. No. 32., No. 2, the CRP?

On appeal prosecutors:
19 th - The penalties actually imposed on defendants for the murder are in direct opposition to the grounds set out for his choice, and translated by the phrase "you will hardly find a murder case in which the action of the defendants is more serious and desvaliosa" and requirements of general and specific deterrence, this mirrored the skills to their personalities, so it imposes a worsening of the same?
20 th - In the case of the crime of concealment of a body should the accused be punished by the maximum provided by law, bearing in mind that this crime turned out to be encompassed by acts, which individually constitute the crime of desecration of a corpse?
21 th - The penalties to be imposed on defendants should be the same amount, since, if the punishment of the defendant BB should be more severe by having been the victim of his actions to his own daughter, I need is to remember that the defendant AA has has a criminal record precisely in the area of ​​crimes against life, so the only penalty for each one should be fixed at 23 years in prison?

II. RATIONALE
9. Facts according to court appeal
9. 1. Facts found:
a) the defendants are brothers to each other;

b) the defendant AA never had certain jobs or residence, living inside a car, or home of his brothers, surviving at the expense of odd jobs, carried out in various locations;

c) the defendant AA manifests contempt for human life - the result of social maladjustment and emotional coldness - anti-sociais/psicopáticas trends and has difficulty with impulse control, which leads him to be aggressive, trying to resolve conflicts through such aggressiveness, feeling no remorse for the consequences of acts that so conducts, trampling on the rights, wishes or feelings of others;

d) by a final judgment, and judgment of 10.11.1993, the defendant was convicted in AA penalty of four years in prison for practicing on 10.02.1992, a crime as attempted murder, p. and p. the arts. 22, 23, 74 and 131 of the Code Penal, consisting of such judgment that the defendant was persuaded by a third party who lived with a sister of the accused (GG) to take the life of another before had left him blind, exchange for $ 20,000 00 and a motor tricycle (see the certificate of fls. 675 ss which is hereby incorporated by play for all legal purposes);

e) the defendant expresses BB socially deviant behavior in terms of norms, values ​​and responsibilities, emotional instability and difficulty in expressing frustration with their socialization interpersonal relationships characterized by immature, superficial and narcissistic, which are salient features of manipulation (for satisfaction of own needs) and aggression (particularly sadistic tone), stressing in his personality the absence of empathy and insensitivity, which leads to contempt for the rights of the defendant, needs and feelings of others, for those driving their aggression, with weak capacity to feel remorse, have borderline personality traits with anti-sociais/psicopáticos, narcissistic and schizoid;

f) the defendant BB, who had six children by five relationships throughout his life has come to show some disinterest in older children;

g) in relation to the eldest daughter, EE, currently live as father and grandmother in Olhão, there left him with 11 months of age, it is never interesting, not healing to know the same for 14 years;

h) the second son, FF, who lived with her paternal grandmother and lives with a paternal aunt in Messines, was also left handed them to his father, is not it more interesting;

i) the fourth son, HH, who now lives with his father in Porches, when she was seven months was left by the defendant BB alone at home, secure in the chair, having thus been found by neighbors who were aware of the situation;

j) at the time the defendant went to live with BB II, the relationship that he had two sons, JJ and KK;

l) the third son had been CC, born 31.05.1996, daughter of LL;

m) the smallest DC, in September 2004, was 8 years old, thin and with a height between 1.20 meters and 1.40 meters, (2)

n) the smallest CC was sometimes sad;

o) the defendant BB did not pursue any occupation;

p) when the defendant was living with a partner II, the smallest CC helped her mother in some household chores, and sometimes helped clean the house, was the younger brothers and shopped;

q) before the defendant BB to find living with a partner II, intended that fail to have the lowest CC in charge, having left it, with 5 months of age with his father, LL - who was not related since the early pregnancy - which ended up a 'giving back' about 2 days later, and later returned to deliver it to the father, who did not want to stick with it;

r) in September 2003, the defendant left the BB CC delivered to a couple of people with alcohol problems and a daughter in bed with infectious disease, in a house without any conditions, for about two or three weeks;

s) on the first day of classes in the lower DC Primary School Figueira, in the academic year 2003/2004, the defendant did not follow the BB to the lower school, having come to DC with a neighbor, who asked not to help find way;

t) from another time, it led to lower neighbor to the hospital, at a time when it was visible being sick with a bad cough;

u) at dawn on September 12, 2004, the defendant AA, after having incompatibilizado UU with his brother, was raised to BB's house, carrying her clothes, and by day 12, remained in the house, situated in the village of Figueira - Mexilhoeira Grande, in Portimão area of ​​this region;

v) in the late afternoon of that day 12 returned home to his sister, the defendant BB, and the children of this, CC, JJ and KK;

x) at about 20 pm that day on September 12, the defendant sent the BB CC purchase a carton of milk and two cans at an establishment called "Pastry ...", located in Figueira, about 420 meters from the house ;

z) the room of the house where the defendant resided BB, is located immediately after the entrance into the house and the door which gives access to the street has a handle on the outside that allows immediate entry to the residence;

aa) the smallest CC returned home coming "Pastry ...", where he had purchased the food mentioned above;

b) at any given time, for reasons not specifically determined, both defendants began together to give repeated blows to the head of the lower CC, leading her to hit her head on the corner of the wall, which is visible bleeding from the mouth nose and temple, thanks to the wall of conflicts, which also caused the collapse of the lower and death, then stopping the activity of the defendants;

c) were the smallest traces of blood on the walls and floor of the room in various places, and also near the entrance;

d) the accused made sure of the death of CC, verifying that did not breathe or react and then not wanting to be blamed for the death of his daughter and niece, decided to prevent any such death was known to others;

e) well, soon decided they had to make was not found in the house that there are any signs of what had just finished practice, the lower body was never found and that, preferably, be created in the belief that all the least would have been taken by others;

f) therefore, the defendant was in BB house, washing the wall and floor where there were signs of blood DC, and the place where the minor was dropped after death, using either a mop bucket and its;

g), and as they knew that the companion of defendant BB - II - and this friend, MM, were about to get home and can find out what had happened if there came to be cleared before the remains at about 21h 30m AA left the defendant, addressing the "Pastry ....", where he met with the II and MM, who were already there, and who said that the smaller CC had not returned home;

h) when the three returned home, the defendant BB had already cleaned the bloodstains found there, and also noted that the smaller CC had not returned home after making purchases;

ai) compared to that by the defendant, the MM II and decided to go look for the smallest, while the defendants were in the house;

j) then decided the defendants, jointly cut the lower body to allow the same store in freezer of your room;

al) to achieve that goal, the defendants muniram up a knife and a saw to cut metal that were in housing, tools able to get the results they wanted, in the span of about 30 minutes;

am) with such tools, helping each other, the defendants cut the body of the CC, separating the head from the trunk and cutting the legs by the knee area;

n) bits of each body was placed in bags of plastic - in the head, trunk, and in another part of the legs and the two legs below the knees in a third - and after they have a node at the opening of the bag containing the head , tried at least three bags in place such freezer compartments, leaving the smaller blood in various parts of the interior of the second drawer cabinet;

to) the defendants did not put the shoes that had the smallest shoe bags, having stayed home all pairs of shoes that used the least that summer;

p) for the lowest ever be dead for about two hours, the body has not left much blood;

aq) between 22h 30m and 23h, the defendant joined the BB II and MM companion, to whom reiterated that the CC had disappeared, and only then moved to "Pastry ....." and asked the owner (NN) if the CC had been there, saying after she had disappeared;

air) however, the defendant informed of anything the police, despite the GNR military service in Figueira, since there arose a popular festival called "Festival of the Cockle," was the third person (NN) that did, telephone, 0h and 44m for the September 13, when he learned that the defendant had not done yet, and as a result of the aforementioned phone call, the defendant ended up talking to the GNR elements of Figueira near the church;

s) at the time the defendant said he had not phoned for not having money in the phone;

at) later, at about 2 am, the defendant bought cakes at a bakery located in the same locality;

au) on the morning of the 13th, the defendant went to the BB Tour GNR in Lagos, accompanied by the defendant AA, where he lodged a complaint with the disappearance of CC;

v) and third party intervention, family II of his companion, began to be truly widespread the alleged 'disappearance' and distributed photographs of the CC, because until then the defendants had intended not to alert the authorities;

ax) in the late evening of day 13, the defendants left the house together, taking a bag;

az) AA the defendant remained at the home of defendant BB to 14 days, length of time during which the two defendants, so that was not possible to determine, transported the remains of CC to an unknown location, thereby giving effect to the intention who had proposed - to prevent the location of those remains - even today it is not located such remains as were not located the cutting tools used, the defendants hid in unknown location;

aaa) the defendant BB gave interviews to the media, trying to make believe that he had actually gone lower, version before that held many of the people who were interested in the fate of smaller and questioned about the matter;

aab) in these interviews about the case the defendant BB sometimes spoke of her daughter in the past and was wearing black blouse;

aac) ticks, including so-called "pellets" (ticks in its early adulthood) have receivers chemical stimuli associated with the temperature which allow them to detect the existence of the own chemical components of blood;

aad) in 18.9 days, the defendant BB acquired oil and a mop of steel, which washed the house, taking advantage to erase almost all signs of what had occurred there, leaving only traces of human blood inside the house, contaminated the products used;

AAE) a nominee of defendant BB, criminal investigation police officers traveled to the home of the paternal grandmother of the eldest daughter of the defendant BB (EE) in Olhão, looking for the CC, and investigated whether a person of Moroccan nationality would have taken the smallest;

af) when present at a clinical psychologist in the context of expertise within the sphere of the case, the defendant BB referred to the existence of some neighboring Brazilian nationals who might have brought with them to DC, because that would have two cars "good" and have been would come away from the location on the same date on which the smallest had "disappeared";

AAG) following particulars of the defendant AA, PJ sought elements of the body of the CC in a landfill next to the brown dirt road that gives access to Mexilhoeira then other places nearby, still in Poco Barreto, a car crashed in Silves, under the bridge over the Rio Arade;

aah) the defendants were able to disrupt the activities of research and prevented the location of the remains of the lower CC who had retired life;

aai) activities described above were carried out by the defendants in concerted efforts and intentions, deliberately, free and conscious, and knowing those behaviors are punished by law;

aaj) as well as regards the taking of life in DC, your direct family (daughter and niece), which they did by force, taking advantage of the same can not defend itself (taking into account the age and physique ) and employing well know that the force, with regard to where they reached the vital body (head) repeatedly and violence, causing the head embatesse lower wall, it could take life, which result agreed , yet this does not cease its activity;

aal) not hindering such a circumstance the less to be dependent on the mother and family of both direct and should be defended by them and not the victim;

mc) so too deliberate, free, conscious and knowing the criminality of conduct, carried out the action described above to cut the body of CC, showing total insensitivity, knowing that so offended the community due respect to the dead, acting with a view to the body of CC would no longer be found, hiding it in a place not suitable for this purpose, so try not to be blamed for his death;

aan) the defendant does not BB criminal records;

aao) the defendant AA, in addition to the abovementioned conviction in e), was also convicted in 1995 for a final judgment and the commission of a crime of robbery, in pity, concurrent with the sentence imposed for the crime of attempted murder, 3 years and 8 months in prison, in 2001, a crime by driving the vehicle illegally, was sentenced by final judgment, the penalty of a fine of 90 days, and in 2003, the practice of a crime of illegal vehicle driving, was sentenced by final judgment, the penalty of six months and 15 days imprisonment, suspended on probation upon fulfillment of conditions, from the suspension to be revoked;

aap) as qualifications, the defendant has the BB 3rd class, never had any profession and married 18 years;

AAQ) as qualifications, the defendant has the AA grade 4 and since leaving school started working, but always working undifferentiated services and no employment;

aas) the defendants were born within a family (parents and nine siblings), which highlighted the alcoholic habits of the father and the economic difficulties.

9. 2. Unproven facts which:
1 - that the defendant BB, throughout his life, has not been providing the basic care for their children, abusing them;

2 - HH the son of defendant BB, has been rescued by neighbors;

3 - that the defendant voted her daughter BB CC sobrecarregasse and the decline of work, forcing her to perform chores that should play but did not play;

4 - that the defendant had abandoned the BB CC, as it had already done to other children;

5 - that's the second time that the defendant BB gave CC his father, had the smallest about 3 years old;

6 - the lowest DC was source of contention between his mother, the defendant BB, II and stepfather, to the point of being threatened by those being put out;

7 - to approximately 20 hours of the day September 12, when the two defendants were alone, they have decided to maintain sexual relations with each other, and the minor children of BB did not constitute impediment to such an act, because they were in the sleep in a room, since the CC could not attend to such acts;

8 - that when CC left home, the defendants have begun to maintain relations among themselves intercourse on the sofa and is still found to have sexual intercourse when the minor returned home;

9 - that to see what the mother and uncle were doing, so the lower CC has said he would tell his stepfather that they were "doing things nuts" trying to leave the house;

10 - that the defendants have raised up from the sofa, heading towards the CC in order to prevent her from II to report what he had witnessed;

11 - the side of the head with the DC crashed at the corner of the wall has been left and the wall in question was located next to the entrance gate;

12 - the CC has tried to run away from home, then being pulled in by the defendant AA;

13 - the CC has left palm prints on the walls and face either the outside or inside by the entrance door in the house;

14 - that the defendants have placed the body of the child, wrapped in a duvet in a corner of one of the rooms of the house, in a place that was not visible to any who enter here, to then decide the fate that would give you;

15 - that the defendant has used BB detergent and bleach in the wash wall and floor where were signs of blood DC;

16 - AA that the defendant has been a beer with the II and MM, in "Pastry ..." to better delay the return of the same house;

17 - which defendants are designed to put the body into a lower cavity situated adjacent to the house, so that the suspect AA moved to the site, but found that this would not be possible for the cover of said cavity being partially cemented of BB reported that the defendant;

18 - the knife that cut the defendants had the body of the lower black cable;

19 - that the defendants have placed the body of the CC in the living room floor, on top of a sheet;

20 - that the defendants have given a knot at the opening of the bags containing the torso and legs;

21 - that the defendants have actually placed the three sacks in the three compartments of the freezer;

22 - that the defendants had changed their clothes they had and raised BB, again tonight, has washed the blood that had fallen on the floor;

23 - that on the night of September 12 the defendant BB invoke the 'disappearance' of the CC to the people they found (except the II, MM and NN who spoke at the 'disappearance');

24 - the bag that the defendants took in the late evening of September 13 contained the instruments used in cutting the minor;

25 - which, however, have begun to emerge ticks in the house, given the activity mentioned;

26 - that, already after prey, the BB has raised several times, attributed to the co-defendant AA full responsibility for the facts and to have imputed to the MM, in addition to having the body that have been placed in car designed to be pressed in Spain, or at various locations indicating that it was;

27 - that the defendant AA, at 1st interrogation, has indicated to be the body of the CC under a bridge, linking the Mexilhoeira Figueira, opposite to that which had originally indicated, and then his brother has indicated a as having moved the body;

28 - that the defendants had acted only in order that the least the stepfather did not denounce what he had seen;

29 - the lowest CC AA depended on the defendant.

10. Motivation of the conviction of grand jury
The determination of the facts proven and unproven based on the whole of the evidence produced at the trial and in accordance with the free belief that the court has formed on the same (always bearing in mind the rules of the experiment), given to the test expert, oral and documentary was produced and measuring up, on this, the ratio of science and the exemption for each of the statements made.

Realizing ...

The defendants chose not to testify.

None of the witnesses interviewed claimed to have witnessed the offenses, although some reported facts relevant to the conviction of the Court.

Let's see what the witnesses said.

Witness OO, mother of defendant BB, said his son married the defendant and that the constancy of this marriage was born EE, his granddaughter. BB stated that the defendant left the house when her daughter was 11 years old, leaving without ever having seen. He also said that the defendant has called BB as to whether he could get the EE, but when the witness answered that he had to talk first with the father of EE, was not interested anymore. Also said the witness, who has to speak after the disappearance of the CC, the defendant came to go to the house of the witness, in Olhão, accompanied by the Judicial Police, who have said that the CC could be there.

Witness PP, who lived with the defendant BB for 5 years, said he is the father of HH, the son of defendant BB, and she left him when his son was 7 months. He noted that the defendant is left to go live with the II, and left the baby in the chair, secured with the belt, and was a neighbor that was foreign to seek and that he gave the baby when the witness arrived home.

The witness QQ, which is still married to the defendant BB, though separated from that for many years, said only that the defendant left when the EE, the daughter of both, was 11 months and who knows when, the defendant never saw her daughter.

The witness RR, paternal aunt of the child FF (son of defendant BB, which is currently 12 years old and lives with the witness, having been entrusted to him by the Court), the defendant stated that BB ever wanted to know the child and from two months of age has always been the mother of a witness and Marco's grandmother who cared for him, because the defendant did not even bathed the baby, and for more than once been away from home for a week, but then again, until He left for good.

The witness LL, father of the CC, said that the defendant broke BB when she was pregnant and that she came to give him the CC and five months, saying he could not take care of it. The witness said she got the CC in your care for 2 days but then was give it to her mother. More said that on September 13, 2004, at around 12h 30m, the defendant BB came to him and asked him if he had sought the CC because she had disappeared. The witness said no. The witness also said that the defendant BB at that time did not appear to be concerned, or shocked, and did not cry and that the lady who accompanied her seemed more worried than she.

The witness TT, professor of CC in the Basic School of Figueira, 20 January to June 2004, said the CC on the 1st day to school in their school arrived late and was accompanied by BB3 supermarket and explained that reason for the delay was because it was lost. He noted that the CC was a quiet girl, with a few days she was sad, others he was more cheerful. He said that at first she was a student who had difficulties because he had missed a lot of school, but then picked up the other. The CC has never seemed to be an abused child, did not appear dirty or with marks on the body. Sometimes it seemed that she was wrong wrapped up, with clothes too thin for the time, but only that. The CC said that helped her mother at home. Since you asked said that the CC would measure 1.32 meters, maybe more, but never measured.

SS The witness, a psychologist in office at the Commission for the Protection of Minors of Portimão said the Commission received a Process Promotion and Protection of Children which was sent by the Commission for the Protection of Children from Lagoa and referred to the fact that the lowest DC have been delivered by the mother to a couple of sexagenarian, alcoholic and other problems. The mother had gone to pick her up and now lived in the area of ​​Portimão. At that time the mother reported that she had left the CC with the couple, only two or three weeks, so she would not miss school while treating the transfer. Later received a communication from the school to report neglect at the level of nutrition and hygiene. Following in April or May 2004 the witness made a home visit to his mother's house in the CC and found that the BB was raised to do lunch and laundry was extended on the rope. Went to school and the teacher told them that there were rumors that the CC worked too hard at home, but she had never seen anything and that the CC was an average student. They spoke to neighbors who said they saw DC play. They spoke with CC, who said he liked to help his mother with his siblings. They decided to close the case.

UU The witness reported that on the eve of the disappearance of the CC, the "4am in the morning and such," the defendant led to the AA Silves Figueira, the home of defendant BB. The AA took a bag and told him that his brother had put in UU street. When they reached the house of Figueira noticed that the defendant BB and II were in the room watching television.

The witness said the UU II worked with in the Porches area for almost three years, to come to Figueira. At that time they live in a house of the witness, by the house where the witness lived. He mentioned that only the II worked. CC met and believes that she was a child who was sad most of the times, but thinks that mother and daughter get along and that the defendant was not cold BB with CC. BB stated that the defendant kept the house more or less clean, though "not like us." He also noted that the CC helped her mother, having seen it sweep a few times. As to defendant AA also met and came to give him work, never having had problems with it. Do you think he was just in DC, never having seen her to speak up.

The witness MM, stepfather of the II, said that the CC had been home of the witness on the day she disappeared, for there had been a birthday party. Later, around midnight, the phone rang and the woman told him that BB was asking for CC because she had disappeared. At 9am the next day found the BB with AA when her brother came to Portimão to the complaint of the disappearance of the CC. He said the BB was sad and crying face came with. In the afternoon of that day was the home of the defendant appeared to be worried that BB (though the witness said he thought she should be more concerned) AA and saw the defendant, who was sitting on the couch. Confirmed that the Judicial Police has been several times to scrap the witness exploits, some of which the defendant AA, and went to see the cars. He told the witness that at a time when he met the defendant at the premises of AA Judicial Police, asked him "after what had happened" and said that AA was "to have sex with my sister" and that "had killed the girl ", and then the witness would not have to know anything else.

The witness AA1, sister of II reported having been in his mother's house with the defendant BB and CC, the birthday party. He declared that he saw the accused on that day AA. Then the second Monday morning, one of his sisters called him to say that CC was gone, so was the home of BB yet this morning, before lunch. When he arrived, the defendant came from BB purchases with the defendant AA. BB stated that it seemed "somewhat" worried and told the witness that GNR could only start looking for the CC past 48 hours. When asked, defendant said that BB always dealt well with CC. When it appears from the letter placed in the file to fls. 1232, confirmed having received it.

AA2 The witness, who lives maritally with the witness before (Carla), said that the second Monday morning with his partner was the home of BB, confirming that when they arrived, the defendant BB was accused of purchasing with AA. Asked by CC and BB said that he knew nothing but that had made the contribution. BB seemed to him "somewhat" worried. He also said that the defendant has always treated BB and CC. Confirmed it was he who gave the letter to the Judiciary Police placed on the file to fls. That the partner received in 1232.

Witness NN, owner of "Patisserie ...", stated that on September 12 the CC appeared in pastry, the 8h 20m / 8h 30m to buy a carton of milk and two cans of tuna. The CC paid on a note of € 10, received his change and left. Said to know the DC to see the bakery and at school. Asked, said he had never seen the defendant take BB to go or to go pick up her daughter to school. The CC said that he had to help her mother deal with the brothers, but never saw signs of abuse in less nor it consisted in the village. Returning to the 12th, said that half an hour after leaving DC, came to the bakery and MM II. Been there about 20 minutes, until it appeared the defendant AA, who addressed them and were talking. The witness did not realize that none of them spoke and asked for the CC. Later, more than an hour after they left, appeared to establish the defendant BB, which was accompanied by his brother AA (who was waiting in the street) and asked for the CC, then saying that she had not come home . The witness was so worried when the bakery closed after half past midnight, was the home of defendant BB to ask if the CC had already appeared, and obtained a response that does not. The witness asked if he had phoned the GNR, and BB replied that not because I had no money on the phone, so the witness went to call home to tell her own situation. Indicated that it found the BB very worried.

AA3 The witness reported that on 12 September at 8h 30m / 8h 40m, was the window of his house to smoke when he saw the CC, with a bag in hand, up the stairs close to the market in direction of the house. The witness said there was no movement in that area, saw no cars nor heard any cry, though it remained at the window for some time. Said that it followed the "Feast of the Cockle," but occurred far from that place and no one was there.

The witness said he saw AA4 DC that night, but could not specify the hours.

Witness II, BB fellow defendant, said that at the material time the defendant lived with BB and CC. AA stated that the accused had come to their house at dawn on September 12 (Sunday). The CC was from 5 Monday before the house of the mother of the witness. The defendant BB on Sunday was also the home of the mother of a witness at a birthday party, and returned to DC to Figueira around 18h. He also said the witness who was at "Pastry Celia" with MM at about 21 pm and that at some point there appeared the defendant AA to say that the CC had gone to the bakery at 8am and had not yet appeared. They went home (did not find anything strange in the house) and the witness asked the BB to go look for the neighbors in DC (but do not know if it was actually) while he was the party of the cockles to see if there would be CC and MM was a walk over there to see it through the smallest. The defendant AA stayed home to take care of the children of the witness. The witness was party time in the cockle, but there was much confusion and come away; then returned to the party with the BB and MM looking for CC and when they were returning home appeared to D. Ophelia, namely DC and ask if they had called the GNR. They told her no and she called. The next day the witness told BB to get the GNR. He further stated that the witness at a time when he met the defendant at the premises of BB Judicial Police, the Police claim that, but at a time when they were only two, the witness asked BB what had happened and she told him that "he had given a slap in the CC and the brother just to kill" all "because she had seen them having sex" and also said he "had put the body in an old house and had been to AA to take it back. " Later, when the witness was visiting the defendant to the BB chain Odemira, she denied she had said and said you had only said those things because the judicial police had beaten him. Asked if the day that he had confessed BB assaulting DC, had the same marks of having been hit in particular had a swollen face or eyes or red, the witness said no. In the witness was also asked if he had some at home saw, it said yes, he had a small fine-toothed handsaw, and when asked by the Judicial Police saw came to him and found he had disappeared.

The witness MM, which at the time living in the home of BB and II, AA stated that the defendant came home on the morning of the 12th of September. He said that on the 12th left the house by 9am 30m / 10h and 18h ​​by only returned, when he was seeking the II to go with the witness see a motorcycle. They arrived at the "Pastry ..." around 30m 21h / 22h, where they drank a beer or two and then came the defendant AA asked if they had seen the CC. They went immediately home. The house had nothing strange was normal, the witness did not notice any storage or cleaning. BB told them I did not know DC II and decided to go to the party cockle seek it, while the witness was a walk the other side. Made to go home and decided to go back to the party, this time accompanied by the defendant BB while AA stayed at home with the children. It took an hour or two and go home before they went to buy cakes to eat.

The witness AA5, mother II, stated that the CC was in his house from 5th to Sunday, September 12, going to Figueira with the mother for 18 h. That day at night (was lying) the II called him to ask if there was a DC, and the witness replied that the CC had gone with her mother, II said that the CC had disappeared. He said the witness that the defendant had the BB house was always clean and well house. One day, after having gone there the SIC, who had noticed ticks on the door and a pillar and told her to go buy BB creosote to kill them. BB bought oil, saying there was no creosote, and was herself a witness who conducted the cleaning outside the house, with the mop.

The witness AA6, GNR's military, said the festival that night stemmed cockle in Figueira and after calling the D. NN met with the defendant BB, II and another individual, at the church, and told the mother that the CC had disappeared, indicating that he had ordered coffee and the last time the child was being seen there had been also at the church. The witness told him the next day would have to go to the station in Portimao formalize the complaint. The witness also stated that the mother did not look much concern for such a case.

The witness AA7, GNR's military, said that on September 13, 2004, the Office of the GNR of Lagos, between 10h 30m / 11h, received a complaint from the disappearance of the CC. It was his mother who made the complaint, accompanied by the defendant AA. The defendant BB looked sad but did not cry. The witness received the photographs that the mother was carrying and asked him if there was reason for CC to run away or had some misgivings, everything with the defendant answered that BB.

The witness said he was in UU "Pastry ...", around 11h 15m when the II and MM appeared to speak in the disappearance of CC. Later, at 24h 15m has to see them, now accompanied by the defendant BB to leave the party cockle. The witness spoke with them and noticed that the BB was calm. The II said that the CC might be with his mother, by the witness lent him the phone for him to make the call to check. The witness also saw the meeting of BB with the GNR at the church, but did not attend the talks. At 1h 45m has to find II, BB and MM, to proceed to home, being at that time brought a BB package he said were cakes. The BB was still very calm, was not crying or agitated. The witness said that that night he saw the defendant AA.

The witness AA8, which at the time owned a cake factory in Figueira, said that only the 2nd Wednesday heard that the CC had disappeared. Confirms that the previous night, perhaps around 2, BB, the II and MM were at their factory to buy cakes (it seems to him that was BB who paid with a 20 €). At that time the BB did not tell him that his daughter had disappeared, only asked if the girl had been there. Bought cakes usually not appearing any concern.

The witness AA9, companion of a half-brother of II, said that the second Monday morning (day 13) coined the BB1 ​​telephoned him to say that the CC had disappeared, so this afternoon was the home of BB. He stated that the BB had been crying and that was down, nervous, but told him that he had had to spend € 2 to come to Portimão participate in the disappearance GNR. The witness also said that, on its own initiative, so the 3rd Thursday, made a flyer on the computer with photography from DC to talk about the disappearance, which photocopied, and with her partner and sister-BB1 walked to spread the leaflets over several sites Portimão and Lagos.

The witness BB2, II's half brother and companion of the previous witness, said that the second Monday evening with his partner was the home of defendant BB, where he was also accused the AA (the witness did not know). He said that he saw that the BB had been crying. He confirmed that his partner made the flyers and that he helped distribute in Portimão and Lagos.

BB3 The witness, who owns a supermarket in Figueira said to know very well the CC, who was a friend and was the witness who took the smallest school in the first day of classes at Figueira. He also told that once led the CC to the hospital because she has walked for many days with cough and said that the mother did not wander into the lead. The witness knew that the CC had disappeared on 13 September morning, by 9am, by a neighbor. He stated that approximately 20m 10h supermarket defendant appeared in BB, which he said had been the Portimão GNR to the complaint. The witness thought the defendant was very calm, but was thought to be so. BB told him that the GNR put the hypothesis to be lower with the father and the witness then got a way to go to his cousin with the defendant BB Pond, see if the CC was the father, but was not. On the 13th night, after 21h, the witness was the home of BB to ask if she knew something. In the BB house were the defendant AA, II and MM. The BB was still very quiet and the daughter of the witness commented that this was very strange calm. After leaving the home of defendant BB witness was talking with a neighbor and soon saw the BB go with Brother AA. BB brought a bag of wings in his hand. The witness did not see who had the bag and did not know where they went. Asked, said he never saw her daughter hit the BB CC or mistreat it.

BB4 The witness said that on the 2nd Monday night (13th), when he was talking with the witness BB3, at 21h 30m / 10h, saw the defendants AA and BB, coming home, up the street. It is recalled that one of them was carrying a plastic bag at hand wings, but no longer remember who and did not realize what the content.

The witness reported that BB5 on the 2nd Monday night (13th), BB3 witness saw the defendant leave the house and the BB called her daughter BB4, leaving all the talking. By 21h 30m / 10h, the defendants saw BB and AA, coming home with a plastic bag, but I do not remember who brought the bag and no idea what it contained.

The witness Bb6, BB3 material witness, said the second Monday morning (day 13), the BB3 went to the supermarket, where the defendant was already in BB. AA stated that the defendant was outside the supermarket. He said that at the request of BB3 was with the two defendants to seek the father of Lake CC, who said he had not the least I can. In return, the defendant wanted to go to BB Village Comrade see if the CC would be in her aunt's BB8, so also there were but without success. Asked about the mood of the BB defendant, the witness declared that he knew earlier, but thought she was "a strange face."

The witness BB7, companion of UU (brother of the accused), said that only knew about the disappearance of DC 3 days later, when her husband read the newspaper article. He stated that before the defendant go to AA Figueira had been in his house, since no residence, but that was gone after becoming angry with the UU. The witness and his companion, after learning of the disappearance, were visiting the BB, who was nervous and tearful. However he told them he would appear on television. The witness further stated that the BB's relationship with CC was good.

The witness BB1, sister of II, said on Sunday, around midnight, the mother reported to him that the II had called to know if the CC was at home. Said the witness that the CC had been at home since 5 th to Sunday and it was only to go home in two on Friday, but as the mother had gone to the birthday party, persuaded her to go early, saying they could go to the festival of the cockles and also there was the uncle. Went around 18h. In the second Monday morning (13th), around 14h, the witness went to see BB. At home were also the AA and II. At that time the BB said it like it is that the DC sidewalk when he was dressed and gone. Later, the witness ran into the shoes that BB had said that the CC had shoes and confronted the BB with it, and she replied that then the CC should have changed his shoes and he had taken his slippers. But later, the witness found one of the slippers under the sofa and the other in the bedroom slipper. DC shoes sought and found in the house all the shoes, sandals and slippers she wore in summer

The witness BB8, aunt of the accused, said the second Monday morning (day 13) appeared in his house the defendants AA and BB. BB told him I had gone to the police saying they had "stolen CC." Neither AA nor BB were nervous, were calm. Also told the witness who had seen the previous Saturday in AA with a bag, telling her that AA was the home of the UU. Later the UU, known as the "..." I told him that he had led the AA to BB's house in Figueira.

The witness BB9, mother of CC1 = (sister of the accused) said that after two or three days after hearing that the CC had disappeared, the defendant appeared in AA home of her daughter Anabela, who lives at the foot of the witness, asking food. That day afternoon, appeared some gentlemen of the Judicial Police who led the AA and then brought him. Reported that AA was a few days home from Anabela.

30. It is no mere lapse because it is, it was also envisioned that interview in place of the trial, it was found that the defendant actually spoke of her daughter in the past, moreover because the interviewer's questions were put to him at the same time verbal, and instead of mourning, the defendant was wearing black blouse and, moreover, red pants.

Words fail me - trial by wardrobe.

The witness = CC1, sister of the accused, confirmed that AA was a few days at home, as had been other times, since no certain employment or residence. Not recall having spoken on the phone with AA. He stated that after eight days of the disappearance of the CC was the home of BB who said he did not know what happened to the daughter.

The witness CC2, the medical-veterinary DGAA, said the pigs in adulthood eat a corpse of a human being with 8 years of age, stating that if five or six pigs eat the corpse of 8 years in 10 or 12 hours and that the corpse is cut will be even faster. He said that pigs eat the corpse completely, making it disappear completely and only remaining waste, faeces, which were not digested. Asked about the existence of ticks in a house, said the female ticks feed on blood. He said that ticks need a host to survive and so they take the animals, being able to find them still in the vegetation. He noted that only ticks leave the host to go to a wall if there is fresh blood on that wall.

The witness CC3, coordinator of the PJ criminal investigation, said they began investigating the case after nine days of the disappearance of CC, but the case was classified as a crime of kidnapping / abduction. It took note of the statements made in the envisioned GNR and television interviews, wondering just the posture of the mother, who wore black and seemed to be lying, and spoke of her daughter in the past. Began taking statements and decided to go see the house of BB. When they arrived they saw that the interior of the house had been washed, and such washing contrasted with the neglect of cleanliness and tidiness of the rest of the house, but still found blood traces on the floor, the walls, bucket and mop and sole of sneakers in the room - the witness confirmed the auto search and seizure of fls. 173. When the test results were conclusive in the sense that these were traces of human blood and mixing human and animal blood, arrested the defendants, having been arrested in Cacela AA. He also stated that with the help of AA defendant proceeded to reconstitute the facts as stated in the Self fls. Ss 273, which reads confirmed that it was present in the diligence. Confirmed that the configuration of the house is contained in the plant fls. 294 and the door which gives access to the street has a handle on the outside that allows immediate entry to the residence. He said that as a result of this reconstitution, and following the directions AA defendant, sought the lower body of a landfill land and elsewhere in Mexilhoeira Grande, a garbage dump, in Poco Barreto, cars crashed his stepfather's existing scrap in the II and Silves, where thoroughly searched without success. He also confirmed by the research technique called trace Projectina room in the house of defendant BB, which resulted in the establishment of the signs photographed in the case fls. 896 ff. The witness also confirmed the auto search and seizure of records from the fls. 578-580 (freezer) and that inside the ark was collected a trace of red blood cells of the human species, noting that traces of human blood was collected inside the drawer, particularly in the rear of the second drawer of the cabinet.

The witness CC4, chief inspector of the PJ, confirmed the auto search and seizure of fls. 173 BB defendant's house, where blood traces were found on the floor, walls, and the bucket and mop on the soles of some shoes that were in the room. Indicated that the traces were very small and it was apparent that the interior of the housing had been washed, not only the ground, noting the marks of the mop in the passage walls and doors. She also indicated that washing the floors and walls contrasted with the rest of the house, which was "filthy", with dirty clothes everywhere, unwashed dishes and "15 days". The witness was present in the reconstitution of the facts, as reflected in the fls. Ss 273, which reads confirmed and stated that following this reconstruction, following the directions AA defendant sought the body in a landfill soil and elsewhere in Mexilhoeira Grande, a garbage dump, in Poco Barreto, a car crashed in the existing scrap the stepfather's II, in Silves, etc.., where looked thoroughly but without success. Confirmed that the configuration of the house is contained in the plant fls. 294 and the door which gives access to the street has a handle on the outside that allows immediate entry to the residence. Confirmed that the defendant had in his possession when he reached the chain Odemira, the receipt of purchase of one liter of oil and a mop of wire, which attempted to undo, and that was delivered to the Director of the PJ EP - confirmed that the receipt is to pgs. 876. He also said he followed the trail of a Moroccan citizen who could have taken the CC, according to information from the BB raised, but has established that at the time of the disappearance of this individual CC was in France.

The witness CC5, PJ inspector, who was reported to Olhão, the house of the witness OO, BB with the defendant, because it was mentioned that the CC could be there, which was not true. He also reported that it carried out several searches in different places, according to statements of the accused that AA was where the body was not having obtained any positive results.

The witness CC6, PJ inspector, said he wanted the defendant AA, which had meanwhile become absent from Figueira - found a witness who was absent on 14 - Coming to detain him in height, Cacela, sleeping in an old car , where also found his robe.

Witness DD, PJ inspector, confirmed it had carried out the seizure of a bag containing clothes of the accused AA. Asked about the drawings of a knife and a saw that lie together fls. 1885 before the Court, stated that such drawings were made by the defendant AA in the presence of the witness and is designed to depict the same objects that have been used to perform the rendering of the CC. The witness was present in the reconstitution of self rendering the file with the fls. Ss 2100, which reads confirmed, stating that the defendant is that the instruments chosen to cut more like those who had used and that the coroner, who was present confirmed that they were appropriate for the act; also confirmed that defendant pointed the way proceeded to cutting, helped by his sister (the photographs represented by an agent), as well as how long it took, and that the coroner said was that the right way to make the cuts and that the time required; more confirmed that the accused also reconstructed how put the body parts in bags and put in the compartments of the ark, which was precisely the same ark that was in the house of Figueira and had been seized. After the witness said that immediately after reconstitution to Figueira went to look for cutting tools AA said that the defendant has used, but not found at home, so the II inquired about it and he confirmed that he had a and saw those who had not realized when he was gone. The witness further stated to have measured the distance from the house of BB to "Pastry C. .." and that the result was about 420 meters, which are traversed on foot, at a normal pace, takes about six minutes to go.

The witness CC7, PJ inspector, reported that carried out a search to find the body of the CC, following successive statements of the defendant AA, have found nothing. Was also reported that primary school Figueira to try to establish the height of the CC based on a photograph that was taken there and where they saw some drawings, but drawings were not the same, and still tried to find measures and obtained the value of 1.35 m or 1.40 m, as is clear from the report contained fls. 2078 and confirmed.

Witness CC8, MD with a specialty in medical-legal, confirmed to have been present in the reconstitution of rendering that made the defendant AA, stating that the defendant chose the instruments cut more like those who had used and that the instruments were chosen that best conformed to the act of rendering the accused was to be reconstituted, and the saw cut bones and muscles and the knife was needed to cut nerves and tendons. He also confirmed that the defendant pointed the way proceeded to cutting, helped by his sister, and how long it took, what it seemed appropriate to measure reconstituted. He explained that the defendant hesitated at the time to reconstruct the way put the body parts in the compartments of the ark, because only when the witness told the defendant that it seemed unlikely that the trunk with the members could fit in the 2nd compartment, is that the defendant showed placement after you have taken the drawer. The witness, asked if the lean body of a girl of 8 years, would fit in that cabinet, did not exclude this hypothesis, answering that would fit "the limit". He added that the cutting of a dead body for two hours and little blood.

CC9 The witness said that on the morning of September 13, between 1h 30m and 3h, was the home of BB and II and found that the trailer was parked beside the house.

"Taken" testimonial evidence, we find that there is no direct evidence of the facts, namely that someone had seen committing the crime.

Moreover, there is even direct evidence of the murder because they did not show the dead body of a minor.

What is that then the Court relied on to give as proven the facts? That's what we expose.

Defines the art. 124 1 of the Code Proc. Criminal, what counts as evidence at trial, determining that there is "are the subject of evidence all facts legally relevant to the existence or absence of crime, punishment or no punishment of the accused and the determination of sentence or safety measure applicable" . In this article, which regulates the issue of proof, it is stated that all facts can be legally relevant to the existence or the nonexistence of any crime, punishment for the punishment of the accused or not, or have relevance to the determination pen. The absence of any limitations to the facts probands or the evidence to use, except those expressly set forth in the following articles or other legal provisions (only not allowed the evidence prohibited by law or those obtained by prohibited methods - arts. 125 and 126 of the same Code), upwelling is the principle of demand discovery of material truth that continues to dominate the criminal proceedings Portuguese (Maia Gonçalves, Proc Code. Criminal, 12th ed., p. 331).

The proof can be direct or indirect / Clues (Prof. Germano Marques da Silva, Course Proc. Criminal, vol II., P. Ss 99). While direct evidence relates directly to the issue of proof, the indirect evidence or evidentiary facts refers to many of the theme of the event, but allow, with the aid of rules of experience, an inference on the subject of proof.

The indirect evidence (or evidential) is not a "minus" on the direct evidence. Rather, because it is true that indirect evidence involved in intelligence and logic of the judge that evidence that associates a rule of experience that will help to achieve a conviction on the fact to prove the direct evidence involving an element that goes beyond rationality and will be much more dangerous to determine, as in the case of credibility of witness. However, indirect evidence requires particular care in finding, since only emerges from the fact that the proband indicting when it is corroborated by other evidence, so that other possibilities are spaced equally possible.

Our criminal procedural law does not establish special requirements on the assessment of circumstantial evidence, so the foundation of its credibility depends on the judge's conviction that, while people should always be motivated and objectivável, nothing prevents that, properly valued by itself and the combination of various signs and according to the rules of experience, enables support the conviction.

Indeed, the art. 127 of the Code Proc. Criminal provides that "unless the law provides otherwise, the evidence is assessed according to the rules of free experience and conviction of the authority." It's called the principle of free assessment of evidence.

According to Prof.. Germano Marques da Silva (Criminal Procedural Law, vol. II, p. 111) "free evaluation of evidence should not be understood as a purely subjective operation whereby a conclusion is arrived at only through assumptions that are difficult or impossible to objectification, but the rational and critical assessment, in accordance with the ordinary rules of logic, reason, the maxims of experience and scientific knowledge, allowing objectify the assessment, a necessary requirement for effective motivation of the decision. "

Also, the Constitutional Court (Ac. No. 464/97/T, DR, Series II, No. 9/98 to 12.1), called to rule on the constitutionality of the provision of art. 127 of the Code Proc. Criminal, and should draw on the teachings of Professor. Castanheira Neves Dias Figueiredo and states that "this righteousness, which has the system of free proof (or moral test) does not open, to be, the will, to subjectivism or emotionalism. This righteousness requires an intellectual process ordered express and articulate the facts and the law, the rules of logic and experience. The judge gives a positional value to the test, meaning in a context that goes into argumentative discourse that will justify the decision. This speech is a speech by foundations that 'practical reason' recognized as such (Kriele), since only thus obtaining the right of the case "is ready for consensus." The justification of the decision is always a rational and reasoned justification and evaluation of evidence can not disregard this intention of rationality and justice. "

The principle of free assessment of evidence is twofold: on its negative side means that the assessment (assessment, graduation) of proof, the decision-making body should not obey any pre-established canon law - has the power / duty to achieve the proof facts and their assessment of it freely, without any pre-fixed hierarchical table prepared by the legislature, in its positive side, it means that the facts are given as proven or not, according to inner conviction that the decision-making body in generating face of the evidence properly in the file, whether it comes from the prosecution or defense, either of its own initiative (Ac. at Coimbra, 9.2.2000, in CJ, XXV years, volume 1, p. 51).

So ...

The area considered to be established in paragraphs aa) ab) c) d) e) f) g) h) i) j) al), am), n), p), aah) aai), aaj) and mc) was based on the testimony of witnesses AA3, CC3, CC4, DD, CC8, II, DD1, MM and BB1, the case of restoration and the records search and seizure, as well as expert evidence thereafter, all interpreted in the light of the rules of the experiment.

The witness AA3, by 8h 30m / 8h 40m saw CC go towards the house up the stairs near the market, with a bag, signal coming from the shopping (and we know that the purchases made by the witness's testimony NN). This witness, who was at the window smoking, remained in the window for some time and found that there was no movement on the spot, saw no cars nor heard anyone scream. That is, according to the rules of the experiment, and since the course is short, it is normal that the child has returned home. And there is no doubt that the CC came home and it was then that the accused hit him. This is clear from the record of rebuilding the file with the fls. 273 ss, including photographs of fls. 282, 284, 285, 286, 287, 291 and 292, and the content of that self reconstitution was confirmed by inspectors CC3 and CC4, who were present at the time and described the acts of the defendant AA during its reconstitution. In rebuilding the defendant told exemplifies the plateaus which gave the CC, where it hit his head, again where he hit his head as a result of aggression of the mother, showed that the lower bled from the nose, mouth and temple, exemplified the drop of less, as was found that less effectively dead and as co-BB held raised for the cleaning of traces of blood, with the aid of a bucket and a mop.

On the other hand, the acts listed in auto restoration are compatible with the blood traces collected in the room (note that the reconstruction takes place in the room), as evidenced by self search and seizure made on 09.22.2004 (cf. fls. ss 173 and 233), which states that traces were collected on the floor near the front door, outside and inside, with the power switch to the right inside the front door, near the entrance on the left side of the sofa, a pair Tennis MM Silva, who was among the sofas, a mop (rod) and its bucket. These remains, according to expertise made, are of human blood and human blood and animal (see pgs. 235), and although they were insufficient to determine who owns through DNA (pages 1780 ff), are revealing in that room that something terrible happened, something that gave rise to that there was human blood on the floor and walls, which were cleaned with a mop and bucket, and the blood that was in the mop was on the pole, revealing that those who had used the mop on his once blood-stained hands. Thus, trace collected in the room reinforce the reliability of reconstruction.

Then the two defendants decided that the lower body could not be found. Hence, butchers had chosen him as the result of reconstruction of the self fls. 2100 ff. For both had the opportunity (as the defendant BB cleaned the existing remains in the room the defendant AA was the cafe where he found the witnesses and MM II, which have been confirmed in the cafe with the defendant reported that AA and then went looking for a DC - as well The two defendants had the opportunity to be alone at home and proceed to rendering). And there is no doubt that the defendants proceeded to cut the lower body. Indeed, AA drew the defendant by his own hand tools used for butchering (pages 1885) - a fact confirmed by witness DD - and participated in the reconstruction, showing how he used the saw and knife, as the two defendants between-assisted, proceeded as cuts, the time that it took as bagged body parts such as the lower and attempted to put in the freezer. In this reconstruction, legal and valid because it is made voluntarily by the accused, witnesses watched the DD (PJ inspector) and CC8 (medical examiner), which also confirmed how the defendant carried out the reconstruction, and the witness also confirmed that DD the ark used in the reconstitution was seized at the residence of the defendant in BB 15/10/2004 (see pgs. 578-580 and photos fls. ss 1712). On the other hand, the acts set forth in this self reconstitution constitute what happened, these results are consistent with other evidence collected. Notice that the witness confirmed that II saw a home that has disappeared and the witness CC8, in addition to clarify that the court of a dead body for two hours little blood, also stated that the instruments which the defendant chose to use for reconstitution were those that best combine with the act, that time showed that the defendant had spent was adequate and did not exclude the possibility that the lean body of a girl of 8 years, that fit the ark, although "the limit". Thus, we can not conclude with certainty that the body, or all parts of the body have been placed in the lower chest, but at least tried to put the results there, not just the auto rebuilding, as the fact that the ark in 16.10.2004, have been collected blood traces of the human species in the interior rear of the second drawer of the cabinet (see pgs. 585), which was again confirmed by the report of examination by the LPC (pages 1780 ff, with particular emphasis on fls. in 1786 (point B) and 1792). Remember also that the witness explained that the CC3 blood traces that were collected within the drawer were precisely in the rear of the second drawer of the cabinet. It could be detrimental if the hypothesis that found in human blood cabinet result from handling of the cabinet by someone in the injured hand, the fact that the human blood was found within the back of the cassette away from such a case and indicates the completion there have been placed in or attempted to place a part of a human body.

As stated above, this matter the Court paid particular attention to the file during the process of restoration, with photographic, the fls. 273 ff and 2100 ff.

At the most, especially for the video recording of one of those reconstructions, the Court did not need, and to this end we are considering, for it is serving. It is the self of fls. 273 ff, in addition to playing with patent suitability for the purpose it is intended, the restoration of which illustrates, it was just limited to the characteristics of exemplary evidence, not subject to drift amalgam or even confusion with any other means of proof.

Clarify that it is true that the accused is remitted to silence and this disadvantage can not (Article 343 paragraph 1 of the Code Proc. Criminal) - the silence that echoes the failure of the Court could proceed to read the statements previously provided by the accused (art. 357 of the Code Proc. Criminal) - this does not mean they can not be taken into account other evidence as the reconstitution of the fact that even if this reconstitution has any part of the defendants - in this case, the defendant participated in AA .

Since the reconstitution of the act was obtained in a legal and valid, it is an evidence to value within the legally established limits (free conviction created based on analysis of evidence under the rules of the experiment). Now the two reconstructions of fact made in the records and referred to above were obtained in a legal and valid, since the defendant AA been subject to any coercion or pressure to make the reconstructions. Moreover, the act of reconstituting fls. 273 ss attended a Judge Advocate and the Public Prosecution of the accused can not be questioned the legality of the act, and the act of reconstituting fls. 2100 ss was present, the coroner, and elements of the Judicial Police. And only those who had had the experience of the facts could reconstruct how they have been, and there was confirmation by other evidence that the events occurred as well (human blood in the room and the ark). The reconstruction of self, not being a self declarations, but an objective record of how the act was reconstituted and could be seen for who was there (criminal police, MP, defender of the accused) was not valued in itself or in isolation but in connection with other elements in conjunction with it, allowing a reading to another level and not exactly reduced to the act itself.

It should be noted that the reconstitution of the fact is specially provided for in art. 150 of the Code Proc. Criminal as a means of proof typical (and several of the others, including several statements by the defendant), defining that their normative assumptions and procedure.

Under paragraph 1 of this article. 150, the reconstitution of the fact that "consists of reproducing, as closely as possible the conditions under which it is stated or assumed to have occurred and that the repetition of the embodiment of it."

Following closely the recent decision of the Supreme Court (Ac., 5.1.2005, in CJ, year XIII, volume 1, p. 159 ff) will say that by their very nature and configuration - play as faithful as possible, the conditions under which stated or assumed to have occurred and that the repetition of the embodiment of it - the reconstitution of the fact that, although neither imposes nor depend on the intervention of the defendant, also does not exclude, whenever it is willing to participate in reconstruction and such participation has not been determined by any form of conditioning or disturbance of the will (whether by physical force or psychological) that may fall in the formulas referred to as prohibited methods listed in art. 126 of the Code Proc. Criminal. Thus, the evidence provided in Art. 150 quoted, "just will not be admissible if it has not been properly acquired, if the reconstitution, or to create the assumptions of fact necessary for reconstitution has been used any means (torture, coercion, or in general, infringement of physical integrity or moral) affecting the freedom of determination, consent or willingness of the defendant to participate in the reconstitution of the fact. Reconstitution of fact as evidence typically provided once held in compliance with the assumptions and procedures that are linked, autonomous is the individual contributions of those who participated and the information and statements that are co-determined terms and the result of reconstitution. Statements (rectius, information) prior or contemporaneous that have enabled or contributed to recreate the conditions in which supposes that have occurred, dissolve themselves in terms of mixing, mingling in their results and how the evidence is procedurally acquired. " Still, as shown in this summary judgment that has been citing "the reconstitution of the fact as evidence, once performed and documented in self or otherwise (eg in audiovisual record), counts as evidence, procedurally permissible on the facts referred to, that is, as a valid means of demonstrating the existence of certain facts, to value, as other means in accordance with Art. 127 of the Code Proc. Criminal, ie, according to the rules experience and free conviction of the judge "and" once performed in compliance with the legal procedures that subject, nothing prevents the judge to appraise, as evidence, the reconstitution of the fact that for the formation of his belief in term of art. 127 of the Code Proc. Criminal, even though the defendant at the trial refused to testify before and have participated in such a reconstruction, nothing prevents that, under these circumstances, the criminal police in it have also intervening, may testify about the manner and terms on which it ran. " The autonomy of the evidence provided in Art. 150 of the Code Proc. Criminal determines that the terms of the collaboration between the defendant and the consequences derived in terms of acquisition evidence should not be jeopardized if it were to rely on at a later stage, the right to silence, as should not be jeopardized by example, the arrests made in response to information provided by the defendant (unless the will and determination of the accused has been upset, embarrassed or conditioned so that the situation can be framed within the prohibition of Art. 126 of the Code Proc. Criminal) .

Ie the reconstitution of the fact as evidence autonomous, can not be confused with the statements made by the defendant in the proceedings, but those expressly provided for in criminal procedural law as 'not allowed' if it does not contain within the framework laid down in art. 357 º, which takes for granted that, in cases where the defendant does not pay claims in open court, there can be no contradictions or discrepancies that allow such a reading.

Ever since the Ac. STJ, 11.12.1996 (BMJ 462, p. 299) it was decided that the PJ officers who undertook the reconstruction of the crime may testify as witnesses of what has happened in this reconstruction, for this situation is not covered by paragraph 7 of art. 356 of the CPP.

More recently, Ac. RC, 22.10.2003, delivered in Proc. Appeal No. 3054/2003, also decided that "there is in the process self-regulating, rebuilding of the crime that took part the defendant, even if the defendant is silent in judgment, worth as evidence information from witnesses that he attended and describe the acts committed by the accused during the same recovery. " And AC. RC, 15.12.2004, CJ 2004, volume V, p. 53 it was decided that "although it can not be taken into account informal conversations with the accused police officers who took part in the investigation stage, the testimony of these agents on the reconstitution of the facts involving reduced to self and complemented by photographs constitute evidence to valuation. " Also in the Supreme Court Judgment of 25.3.2004, delivered in Proc. 248/04 of 5th Criminal Chamber, decided that "even if the defendant does not pay claims in a hearing, may be valued self reconstitution freely participated in this." They state that "steps are different, although they may be complementary, the testimony provided and the reconstitution of the facts. The first is the discourse of the declarant, containing predominantly verbal, that is in focus and is valued, the second is the modus faciendi that it is concerned and the person carrying out the reconstruction shows as it did on the spot redoing all the steps of their action and if the reconstruction is reduced to self, this self is not an auto claims and do not obey the logic of it neither he brings back. Reconstitution is a revival of the fact and its implementation and, in general, can not do without words, these are not the crux of the reconstitution, since the sign language and body here assumes a primatial relevance. "

In addition to the records of the reconstitution and testimonial and expert evidence related thereto, and confirms that it is still worth noting that several of the witnesses interviewed refer to carelessness of the defendant with the "disappearance" of the child, accepting it without despair or distress. Notice that the defendant will only "look" to lower the cafe between 22h and 23h 30m (according to the witness NN), more than two hours after the CC have been there, does not contact anyone else wondering about the whereabouts DC and is also not on his initiative that the GNR is contacted. Note also the purchase by defendant of oil and a mop of steel (pages 876), that washed the house on September 18, and witnesses reported that CC3 and CC4 to clean the floor and walls of the house contrasted with the state of dirt from the rest of the house, particularly with regard to the dishes and laundry - well, this type of cleaning, in these circumstances it is only compatible with the desire to eliminate traces of blood that could keep the house.

From what we can conclude that the representation made by the accused AA of reconstituting the self fls. 273 ss, as to the outcome of aggression, results from the way they are produced, and they successively applied violence that has proved capable of producing shocks the victim's head against the wall, so all the lights can not have failed to perceive that outcome. Already the way it is carried out the dismemberment of the corpse, self evident in the reconstitution of fls. Ss 2100, leaves no doubt as to the intentionality of the act and direct as well as to their motive.

The above is just enough to establish the conviction of the Court with respect to relevant facts.

Furthermore, and for the same actuality, the witness DD1 (the stepfather II) AA stated that the defendant confided that he "had killed the girl." The witness also said that the BB II said that "had given a slap on the CC and AA just to kill" (later raised to BB would have tried to justify the claim saying that the II had only said that because the PJ had hit him, But the day they told him about the assault CC, BB and II were alone and saw no marks on this BB that it had been hit and there was no reason for her to make such claims if the partner were not true). Of course the testimony of these witnesses can not be seen as a confession of the accused - which do not admit, but opted for silence during the trial - but that does not mean they can not simply not be valued by the court.

The art. 129 of the Code Proc. Criminal prohibits, in principle, that the testimony is silent on the specific facts and direct knowledge, in particular the "hearsay testimony", so it determines the need for an indirect confirmation of the testimony, with the consequent hearing people "who is heard." Only after such confirmation may be effective indirect testimony as evidence, only if the confirmation had to be made by the defendants and they do not testified or may be required to pay maintenance them. Under paragraph 7 of art. 356 of the CPP, which refers to paragraph 2 of art. 357 thereof, is not permitted to reproduce the contents of statements whose reading is not authorized to the use of those who have collected, what good is understood, but something different is the testimony of person who is not a criminal police body and not collected statements , only asked and heard the answer.

Moreover, our higher courts have held that "proof by hearsay, when reported extraprocessualmente the statements made by the defendant, is subject to discretion by the court (Ac. of RC 6.10.1988, BMJ 380, p. 552), "if the witness reports having heard the defendant's own confession, this does not constitute indirect evidence pursuant to and for the purposes of art. 129 of the CPP (Ac. STJ, 15.11.2000, proc. 2551/2000-3 nd), "proof by hearsay, when reported extraprocessualmente the statements made by the defendant, is subject to discretion by the court when the defendant is present in audience and, therefore, with the full opportunity to contradict, or to defend itself "- in this case the defendant had chosen to submit to silence in the hearing (Ac. RC, 18.6.2003, ECR 2003, Volume III, p. 51).

Also, the Constitutional Court has held that "the art. 129 § 1 (in conjunction with art. 128 1) of the CPP, interpreted as meaning that the court can appraise freely testimonials indirect witnesses to report conversations with a co-defendant who called to testify refuses to do so in the exercise of his right to silence, no hits, so intolerable, oppressive or manifestly disproportionate, the defendant's right of defense. So there is no unacceptable shortening of the right of defense defendant, so it is not unconstitutional "(Ac. Trib. Constitutional No 440/99, 8.7, proc. 268/99, DR Series II, 9.11.1999).

Conjugate the entire set of circumstantial evidence, the Court created the conviction that the CC is dead (not requiring the appearance of the body against the conviction by the Court that the defendants did disappear in the manner described) and that the defendants were practiced the facts. All elements counted, examined together, away from any reasonable doubt and created the full conviction that both defendants committed the acts as described in this judgment.

11. The art. No. 710. Of the Code of Civil Procedure (CPC), which applies additionally provides that "the appeal and the hardships that have come up with it is judged in order of their filing."
So, know first the interlocutory appeal filed by defendant BB. However, the resources of the sentencing judgment is not feasible to meet them in order of filing, for imperative reasons of course lead us to relegate the use of the Public Ministry to last. Indeed, dealing with this as the only measure of punishment, we must first establish that the established facts and their legal status, which can only be completed with the assessment and judgment of the resources of the defendants.

11. 1. Interlocutory appeal of the defendant BB
The Code of Criminal Procedure establishes the rule that "the evidence is admissible are not prohibited by law" (Art. 125. Of the CPP).
Despite the wording of the legal norm seem tautological, it can draw that on the one hand, allowed other evidence that not only set in the law, secondly, that there are those who provided only become prohibited if they are obtained by expressly excluded, including (but not only), through torture, coercion or, in general offense of physical or moral integrity of persons (Art. 126. of the CPP).
A set of evidence in the Code of Criminal Procedure is the reconstitution of the facts, because "When you need to determine if an event could have occurred to some extent, it is permissible to rebuild. This consists of reproducing, as closely as possible the conditions under which it is stated or assumed to have occurred and that the repetition of the embodiment of it "(Art. 150., No. 1)."
And the law provides for the procedure to be adopted as follows: "The order to order the reconstitution of fact must contain a concise statement of its purpose, the date, time and place where the proceedings take place and the manner of its execution, possibly using the media. In the same order may be designated an expert to perform certain operations "(Art. 150., No. 2).
Reconstitution of the fact a self should be drawn up, because this is the tool to make faith the terms in which the pleadings took place (Art. 99.), While the same can be partially replaced or supplemented by audio-visual documentation or other suitable, as the camera, as is apparent from the cited art. 150., no. 2.
Reconstitution of fact, it is a means of proof allowed, to value "according to the rules of free experience and conviction of the authority" (Article 127 of the CPP).
And nothing prevents it from being a means of evidence that can be brought to the hearing, since this' court orders, ex officio or upon request, the production of all evidence, knowledge of which it deems necessary for the discovery of truth and good decision cause "(Art. 340., no. 1).
As we have already decided that the Supreme Court (Ac. of 05/01/2005, proc. 3276-04, rapporteur Gaspar Henriques Advisor) "By its very nature and configuration - playback, as faithful as possible, the conditions under which states or is supposed to have been the fact - the reconstitution of fact, although neither imposes nor depend on the intervention of the defendant, also does not exclude, whenever it is willing to participate in reconstruction, and such participation has not been determined by any form of conditioning or disturbance of the will, either through physical or psychological coercion, which may fall in the formulas referred to as prohibited methods listed in Article 126 of the CPP. "
The cooperation of the defendant in the reconstitution of the fact, however, raises a problem of compatibility with the evidence for statements. It is the defendant in the course of rebuilding may provide some indication that verbal and therefore it is necessary to know whether the proof is thus acquired includes the acts of investigation or statement which read, in principle, is not permitted at the hearing, to contain statements of the accused (Art. 356., no. 1-b).
The accused has the right to silence, even without the disadvantage can (Art. 61 s. No. 343-ce., No. 1) and has the right to not read your previous statements, even if made before Judge unless it consents, or if, wanting to testify, it is necessary to revive the memory or confront him with contradictions (Art. 356., no. paragraphs 3, 4 and 6).
Now, on the compatibility of the evidence by reconstitution and containing statements of the accused spoke out not only the said Judgment of the Supreme Court, but also, among others, to March 25, 2004, Proc. 248/04-5, reported by the same rapporteur of the proceedings - judgment which has the following summary:
1 - The statements based on investigation and reconstruction efforts of the facts are different, although complementary, statements, is the discourse of the declarant, containing predominantly verbal and even oral, although reduced to writing, following a chain of questions and responses, which is in focus and is valued, and in it the declarant and the defendant, which made it mainly explains the conduct and the circumstances of the act, the reconstitution of the facts, that is the modus faciendi is concerned, and in it the person carrying out the reconstruction shows as it did on the spot redoing all the steps of their action (The law says, as faithful as possible to reproduce the conditions under which states are supposed to have occurred or that the order and repetition realization of it).
2 - It is, therefore, a revival as 'natural' as possible to a situation. And if this revival in general can not do without words, these are not the crux of the reconstitution, since the sign language and body assumes a primatial relevance here.
3 - While there are no statements without words, and more specifically, with no verbal speech, since it is admitted that a reconstruction can do without them. The reconstruction is reduced to self - it is true - but this is not an auto auto claims and do not obey the logic of this, neither he brings back. What is written there is not the product of the statements, the translation is written in a revival of what was done and that consisted mainly a reproduction of the act that took place in the past.