THE LIES TOLD ABOUT THE CIPRIANO SCANDAL

4 - This is why the recovery is directed at obtaining a more perfect intelligibility of what happened - intelligibility in act, not exactly in words. So that only those who lived the event can reconstruct in a manner unmistakable.
5 - Not having the statements made by the applicant in the investigation and instruction, as defendant, was taken into account and he has opted for silence at the trial, although that can not disadvantage him, pursuant to art. 343., No. 1 of the CPP, however, been considered the other evidence, including the reconstruction of self.
6 - This, not being a self declarations, but an objective record of how the act was reconstituted and could be seen for who was there (the criminal police, other players) was not valued in itself or in a isolation but in conjunction with other objective factors, with other data observable by others, combined with other elements with it, thus allowing a reading to another level, not exactly recondutível the self itself.

In turn, the judgment of the Supreme Court of 05.01.2005 stated that 'The reconstitution of the fact as evidence typically provided once held in compliance with the assumptions and procedures that are linked, autonomous individual contributions to who have participated and the information and statements that have co-determined terms and the result of reconstitution. The statements (rectius, information) that have prior or contemporaneous allowed or contributed to recreate the conditions believed to have been the fact, dissolve themselves in terms of reconstruction, mingling in their results and how the environment evidence is procedurally acquired (...) The privilege against self-incrimination means that the defendant can not be required, nor should be conditioned to contribute to self-incrimination, that is, has the right not to sell or provide information or elements (eg, documents) that the disadvantageous or not to testify without that silence may result any negative consequences or adverse inferences at the level of evidence assessment (see, eg, judgment of 3 May 2001, the Court European Human Rights, in the case JB c. Switzerland) (...) But since the content of this law, are outside its protective circle of the contributions of evidence, sequential and independent, that the defendant has made available or allowed, or that have enabled them to acquire the information provided, enabling the identification evidence and the corresponding acquisition or the realization and practice of pleading with their own shape and size in the list of evidence, as is the reconstitution of the fact. "

Faced with this data in case law, we are able to state that no legal obstacle prevents or prevented the viewing in the hearing of evidence by reconstitution of the facts, despite the defendant AA, which it actively collaborated, have used the right to silence.
This is independent proof, which contains contributions of the accused, but not to be confused with the evidence for statements. On the other hand, nothing allows us to doubt that the defendant voluntarily participated in AA and that this recovery was not subject to any coercion or harm the physical or moral integrity, as well as where to find the Attorney General of the Circle, was assisted in act by his defender, who was present.
Thus, such evidence was not prohibited by law and virtuality had to appear at the trial through its audiovisual recording medium, for remember, the law allows the documentation of the act is done that way. And it is noted that the recording exists as a complement to the written self care, in which a photographic figure also, all included in the volume I, pages. 273-294.
And as evidence legally admissible and could have been the subject of discretion by judges, as was (Art. 127. Of the CPP), do not confuse such evidence as we have seen, with statements previously given and whose reading was prohibited on trial.
It is true that the accused, to proceed with reconstruction, "said", as the applicant, ie, produced a verbal discourse that accompanied the reproduction act (we call it in the theatrical sense, representation or mise-en-scene, but not a fictional event) the modus faciendi involving the crime. But this is not verbal discourse leads back to the strict procedural concept of 'declarations', but rather a verbalization of the act of recreating the event. Therefore, the address or 'statements' independently have a value not produced, as are instrumental in relation to that recreation. Hence one of arestos above, it has been said that "the statements (rectius, information) prior or contemporaneous that have enabled or contributed to recreate the conditions believed to have been the fact, dilute the actual wording of reconstitution , mingling in their results and how the evidence is procedurally acquired. "
And on the other hand, the interference of the elements of the PJ and the Public Prosecutor who intervened in the act, such as viewing the video allows us apercebermo, did not correspond to any interrogation or taking of statements, but the requests for information coming following the steps that the defendant was rebuilding AA in order to allow them to be binding and concatenation, its intelligibility and accuracy, or simply to requests for examples.
Can not bring themselves to statements of the defendant so the information provided, nor can they be regarded as "informal talks".
As can scoop up the case law on this issue that this Court has produced 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. º, 57. et seq., 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 (see, among others, the judgments of 30/10/01, Proc . n. No 2630/01, 3rd Section, rapporteur: Director Armando II, of 3/10/02, Proc. n. 2804/02, the 5th Section, rapporteur: Councillor Wood Pereira, and 9/7 / 2003, Proc. n. º 615/03, 3rd Section, with the rapporteur of the first-directors appointed judges).
Now, as we have seen, the information provided by AA are not statements defendant made outside the scope of the criminal police bodies; are the verbalization of the act of rebuilding validly made in the process, according to the rules pertaining to this evidence and particularly prescribed in art. 150. Of the CPP, and the defendant made the restoration of free will, without being subjected to any form of coercion and the presence of his advocate. Such information, however provided, and that this step, the request for criminal police agency or prosecutor, were intended to clarify the act of mixing, mingling with it.
As stated in the judgments cited, such information or statements, integrating in evidence with a stand-alone configuration on all the means of proof, beyond the circle are protected by the right because this is not only the scope place the defendant under the obligation of having to give evidence or information that the self-incriminate, without its negative consequences may result from silence or it can be drawn adverse inferences, but that can not be made avail at trial evidence of size and shape suitable for which he has voluntarily contributed by providing the necessary information.
Thus, reconstitution may be brought to trial as evidence specific, distinct from any statements that the defendant could have paid in the investigation or inquiry and that, by virtue of their choice by the right, could not be read in open court , also do not see that the viewing of the video offended any legal prohibition, under the provisions above quoted, even though such support documents behave the information, ie, the information provided by him in the recreation of the fact, and that such explanations were rendered, sometimes the request of the criminal police and prosecutors involved in the act and to ensure their understanding and focus on the essentials.
In any case, the court of 1st instance was not served the video recording for conviction of the accused and the particular information that were provided during the reconstitution.
Does the judgment under appeal at a certain step: 'No more, 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. "
Therefore, despite the legitimacy of the display of video recording at the trial, the fact is that under the grounds of conviction, was not even necessary to resort to it to form the conviction the court decisions. And it underscores not only the transcribed statement, but the entire grounds, which, as is extensive and thorough, never uses the contents of any 'statements' or 'information' provided by the defendant during the reconstruction AA to substantiate proof of any Indeed, and this would be an objective which should be registered, if required (not) to rule out the relevance to proof of those "statements" or "information", since its scope and meaning in the specific evidence here is considered.
The appeal raised the interim BB unfounded because his claim was that was declared void the order of the court allowed the jury that video viewing audience in the reconstitution of the facts and such invalidity does not occur.

11. 2. Murder, desecration and concealment of a body
11. 2. 1. General Considerations
As apparent from the facts proved (and is in the public domain) were never found or seen the body of the lower CC, even partially.
However, the two defendants were convicted of crimes which have the typical element and needed the victim's death.
This is cause for reflection.
We did not find any similar case which was tried in the Portuguese courts.
The doctrine and jurisprudence Portuguese are meager in information on this issue, which is not the case in Brazil, where the topic is widely debated and even has legal solution, possibly there be a more violent crime.
The Criminal Procedure Code of Brazil has in the art. 158. º that "when the offense trace, will be essential to a forensic examination, direct or indirect, can not provide him the confession of the accused," but the art . 167. paragraph states that "it is not possible to examine the corpus delicti, because they have lost the traces, the testimony could meet him miss."
UU Hungary, the "Commentaries on the Criminal Code", V, 63-65, reflected on this issue as well:
'Proof of materiality of the murder. Murder is typically a crime material: it is inconceivable without the event there is death of a man. How often in crimes that leave traces, is the essential basis of the indictment, in kind, the examination of corpus delicti, that is, the finding of materiality of the crime. Not even the confession of the accused, no other element of belief, supplies the lack of corpus delicti because the penitent may have been wrong or be a morbid self-accuser, or have been coerced to declare himself the offender. Why is there a rejected it, in violation, moreover, Article 158 of the Code of Criminal Procedure, that occurred the famous miscarriage of justice Araguari, which resulted in the conviction of the brothers for the alleged murder of Spacecraft Benedito Pereira Caetano, who, years then returned, alive and well, of Bolivia, where he had moved, taking money subtracted from their parents. The confession of the accused had been extorted by the violence of a military delegation. (3) An examination of corpus delicti may be direct (through ocular inspection and autopsy of the corpse, to investigate the cause of death, means that the produce, etc..) or indirect (via controls, when the trace of pericialmente criminal can not be checked). Is it possible the success of a prosecution for the crime of murder without the victim's corpse appear? Carrara said: "We can not say that there is crime of murder, until it is ascertained that a man killed by AIDS work of another. And you can not say that a man died there, while it is not his body or at least, their remains, duly recognized. " This criterion is too stringent and may in their irrestrição lead to impunity for perpetrators of murder manifestos. Considering the case cited by Irureta Goyena: two individuals within a barge on the River Uruguay, were seen struggling renhidamente, being one of them shot the other to the stream, never to appear. We baldadas research to meet the corpse. But if, despite the absence of the corpse, the circumstances were such as to exclude another possibility that was not the victim's death, would be intolerable to leave is recognized in such a case, the crime of murder. Certainly lacked the physical, but there were absolute moral certainty of the existence of the murder. As correctly observed Goyena, one should not confuse the "corpus delicti" with "the victim's body," and the first proof of sufficient moral certainty about the occurrence of the event constituting the crime. Just as long as possible to make sure, however little, about the death of the missing victim of violence, which should eliminate the possibility of charging the murder. Eloquent warning in this regard was a film titled Fury, aired a few years ago, in Brazilian theaters. Its central episode was a crime mob against an individual suspected of kidnapping and had been taken to a jail. The rioters set fire to the jail, which was reduced to rubble. Among these was not found the corpse of a prisoner, but only recognized as a ring of its use. Deduce then that the body of the barsteward off completely consumed by fire, and although it was not excluded that the prisoner had managed to save himself, escaping without being seen by a gap that had opened in the wall of his cell , the arsonists were processed, and were on the verge of being condemned, when in full courtroom, pseudovítima emerged: the possibility of his escape and rescue, hitherto rejected, was the only true.
If the fugitive had not returned, moved by an impulse of generosity, the rioters have been unjustly convicted of homicide. Since a hypothesis is formulated in the absence of the event "death" is not admissible under a conviction of murder. The likelihood, however great, is never the truth or certainty, and only this allows a conviction. Order a possible offender is to condemn an ​​innocent as possible. "

And Júlio Fabbrini Mirabet, Manual of Criminal Law, 2, 19. Edition, S. Paul, 2002, p. 66 also states that "Evidence of murder is supplied by the report of a forensic examination (autopsy). When it is not possible to examine direct (the victim's body is not found or disappears), allows the constitution of the corpus delicti indirect witnesses, for example, not supplying the simple confession of the agent (Art. 156 and 167 s CPP) »
Magellan also Noronha, Criminal Law, 2, 27. Edition, S. Paul, 1995 p. 18, it says: "It is proved murder with a forensic examination, which as a rule, is direct. Failing this, it is acceptable indirect, made by witnesses. Irureta Goyena cites the case of two individuals who were seen fighting in a boat, and one of them daring the other to the current plentiful, and no body was found ⌠ J. Irureta Goyena, El crime of murder, 1928, p. 8 ⌡. For lack of direct examination is that it would still be charged with murder.
It should be stressed, of course, in which case there may be doubt as to the result which is binding, then the solution favorable to the accused. Remember, for example, that even the defendant's confession alone is not sufficient evidence, as in the case that invokes Carrara Chiaja of two sailors who accused him of having two young men who drowned, however, had been rescued and lived comfortably in Rome ⌠ Carrara, Programma, cit., § 1088, note 5 ⌡. Not only can be misleading as false self-accusation. "
Found in a sentence http://juris.tjdf.gov.br/revista/D647.doc exhaustive on this subject, the Judge in the Federal District of Brasilia, Dr. Leila Cury, where we collect the following excerpts:
Regarding the appropriateness of conducting a forensic examination indirect when it becomes impossible to achieve in the face of the direct examination of the disappearance of the victim's body, there is a case in the forensic literature, occurred back in 1964, but well known and mentioned in the news on the trial of LEOPOLDO HEITOR, accused of killing and hiding the body of the victim of Teffé DANA. He accused filed several habeas corpus seeking his release and / or locking of their prosecution, but all were denied, given that one of them, judged by the Praetorium Exalted, was rapporteur Eminent Minister Victor Nunes, whose vote the following extract stretch litteris:
"... It is also alleged that materiality could not be demonstrated by the lack of body-in-crime, but that's not what happens, because the Code of Criminal Procedure, provides in its article. 167, this evidence can be made by witnesses, that is, indirectly, and the drafters, as Espinola and others also understand that that is enough for only the testimony of a witness. Now the Exalted Praetorium has spoken well about it, when the trial one of the "habeas corpus" filed by the accused Leopoldo Heitor, concluded the Minister Gonçalves de Oliveira why, if so, would be very easy to eliminate any criminal to his victim, hide your corpse and thus escape the penalty ... " (HC DJ 40.540/RJ 8/13/64, p. 02825 - highlighted).
In more recent times, another case very similar to that of Teffé and DANA M. County occurred in Uberlândia-MG, with the accused ANTONIO PORTE Daci and his victim as HAIL MARY DENISE LAFETÁ. This was judged by the jury of that county mining, at which Daci was sentenced to 13 years in prison.
(...)
I call again doctrinal understanding about the same subject, bringing it appropriate, the collation, the thought of HENRIQUE FERRI, for word:

"... A century of civilization increases in line with the wit and cunning criminals, the point for discovering and accusing no longer enough just common sense, which, however, is not as common as some people think, but being required all the logic, which therefore became a habitual exercise judicial power (...) These crimes are technically designed, technically prepared and technically hidden. Because the most important of these crimes is his subsequent concealment, not just to avoid prosecution, which is the concern of all criminals, but more importantly to ensure the enjoyment of the proceeds of crime ... " (Address of accusation, p. 167/168 - highlighted).
Mittermaier, in turn, in the Treaty of proof in Criminal Matters, p. 24, questioning the understanding of CARRARA as well as I did HUNGARY, said:
"... The essential thing as certainty required in criminal matters can not foreclose on scientific or legal rules, but lies in the intimate and innate sense that guides man in the important acts of life (...) is a mistake to believe that material evidence is the only source of certainty (...) the criminal sentence is not the result of arithmetic ... " (Highlighted).

In http://www.desaparecidospoliticos.org.br/noticias/nt_desarquivando7.html can read an article entitled "The true republican" Fabio K. Comparato, where, in respect of crimes against humanity is written:
Our military decided, therefore, recourse to this stratagem: the killings continue to be practiced, but would be given to the complete vanishing corpses. In the early 90s of last century, international bodies have decided, after all, to tackle the problem. A Resolution of the UN General Assembly, dated 18/12/92, as well as the Vienna Declaration and Programme of Action adopted at the World Conference on Human Rights 1993, condemned for the first time, the practice of forced disappearances, qualifying them as a disguised form of homicide. Finally, the Statute of the International Criminal Court in 1998 defined this act as a crime against humanity (Article 7, point /).
And http://www.edmarger.com/article_CorpusDelicti.htm there is a reference to the Supreme Court of the State of Indiana (USA) whose statement of principles can be drawn that it does not take a body to establish the crime of murder when there is evidence of a death and further evidence that allows the inference that death was the result of criminal prosecution of anyone. These facts can be proved only by circumstantial evidence. And there also are given a decision by a California court where he wrote that the fact that the killer could have the victim's body with no success enables him to an acquittal, this is a form of success that society does not reward.
Among us, only we found the following reference Luis Osorio, Notes to the Criminal Code, III, p. 58, on crimes where the victim's death is typical element: "Death is an essential element in any crime accomplished. In some cases there may presumption of death - vid. arts. 332. And 344 º., § 2. No '. However, the crimes set out in these Articles of C. Criminal, 1886 refer to the false imprisonment and hiding under 7 years when the offender does not show "where there is" the prisoner or the smallest, so that death is not a typical element, but the presumption is an aggravating factor.
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. In fact, the impossibility to perform direct examination would make away with some very serious acts, whether sponsored by high crime, either by common criminal who, by skill or luck occasionally, got rid of all traces of their heinous acts.
Clearly 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.
The miscarriage of justice can ever come to be corrected, because the law provides for the existence of a process of review of final judgment, which occurs, for example, at the discovery of new evidence. But repairing the harm it may be late and totally unsatisfactory.
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 anyone for the crime of violation just because it was not possible to examine the direct victim.
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 death 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 no legal rule that imposes, shall be admitted other evidence indicating that "moral certainty about the occurrence of the event" (UU). So there will be an increased demand on the evaluation of evidence.

11. 2. 2. The present case
In this case, a witness saw the smallest CC return home, already very close, and about the time at which the crime occurred, the defendant later informed the police authorities never explained the disappearance of the minor; showed blood traces on the ground in walls, bucket and mop, the soles of some shoes that were in the room and inside a freezer drawer, the defendant AA collaborated in a reconstitution of the facts in which he indicated he died as a child; also collaborated on another reconstitution of quartering the smallest; this, beyond the testimony of those who heard the defendants say that they killed (or the AA eventually kill) the lowest. These traces, 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), demonstrate that the room of the house where lived the DC and where it was headed 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 mop up found in the stem, revealing that those who had used the mop turn their hands stained with blood.
All evidence points to the occurrence of death and the lowest CC is incompatible with any plausible factual hypothesis, that nobody, not even the defendants tried to conceive. In fact, how to explain the profusion of human blood traces at the home of CC, even within a rear drawer freezer, and while his disappearance?
Therefore, compared to what has been explained on the subject, not the fact that it was not possible the direct examination of the corpse to prevent the conviction of a crime in which the typical result is the death of the victim or crime that has the assumption that death.
It remains to note that neither the applicants themselves, the findings of its resources, hypothesise DC not be dead.
What seems significant.

11. 3. Appeal by defendant BB
11. 3. 1. As one reads the judgment, "traveled" the testimony, 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. "
The proof of the murder resulted, therefore, the assessment that the Court of Jury made on a set of evidence, according to the principle of free assessment of the evidence, which postulates that "unless the law provides otherwise, the proof is assessed according to the rules of free conviction and experience of the competent authority "(Art. 127. °).
A free evaluation of evidence basically means an absence of legal criteria that predeterminem hierarquizem or the value of various types of proof (see Figueiredo Dias, "Criminal Procedural Law, I vol., 1974, p. 202 et seq.).
A free evaluation of evidence may involve, of course, a great deal of subjectivity, it is impossible to disconnect the judge's personal experience, their culture, their ideas of life, their morals, etc..
However, this' principle can not in any way want to point to an appreciation imotivável and uncontrollable - and therefore arbitrary - the evidence produced "(op. cit.)
The discretion with which the judge assesses the evidence can not be confused with arbitrariness. Therefore, "the assessment-to be there, in particular, recondutível objective criteria and, therefore, in general likely to motivation and control ... The truth" stuff "that is sought in criminal proceedings is not absolute knowledge or apprehension an event that everyone knows to escape the human capacity for knowledge, especially as here involved, inevitably, numerous sources of possible error, either because it is knowledge of past events, or because the judge will most often to resort of evidence that, by its nature - and that's what happens especially with the testimony ... - Prove to be particularly unreliable "(ibid.).
Given this principle of free assessment of evidence, "one of the primatial functions of the entire sentence (maxim of criminal law) is to convince stakeholders of the soundness of the decision ... The considerations give requirement that judicial evidence are always motiváveis ​​"(ibid.).
So the art. No. 97 requires that all decision-making, - sentences, orders and judgments - are always grounded. And such reasoning must focus not only on the aspects of interpretation of the law, as was traditional, but also on the decision of the facts, for the reasons already mentioned.
Indeed, art. 374, no. 2, provides for the drafting of the judgment that "the report follows the reasoning given in its enumeration of the facts proven and unproven, as well as an exhibition as much as possible complete , yet concise, the reasons in fact and law underlying the decision, with details and critical examination of the evidence that served to form the conviction of the court. "
This critical examination of the evidence has been thoroughly done by the court appeal.
Ask yourself, now, this Supreme Court that, on appeal the decision, review the facts, within the limits of their powers of cognition.
Remember that this is a direct appeal of the final decision of the Jury in the Supreme Court that, as we know, is a court of review, the only known point of law, and whose cognitive powers, therefore, escape the inquiry of the matter in fact, with the exception of that resulting from the exact context of Article 410., no. 2 of the Code of Criminal Procedure, ie on whether the text of the judgment to bear some of the vices that here alluded to, in come to be called, therefore, extended magazine - art. 432 paragraphs. thereof, c), and 434. º.
Indeed, the art. No. 432. Thereof, al. c) determines that there is a direct appeal to the Supreme Court "of final judgments rendered by the grand jury." But the art. No. 434. Stipulates that an appeal to the Supreme Court's review is confined to matters of law, "without prejudice to art. º 410, n. 2 and 3."
In turn, the latter have rules that:
2 - Even in cases where the law restricts the cognition of the appellate court of law, an appeal may lie as the foundation, provided that addiction results from the text of the contested decision, either alone or in conjunction with the rules of common experience :
a) failure to decide the facts proved;
b) the reasons or the insurmountable contradiction between the reasoning and decision;
c) Error apparent on examination of evidence.
3 - The appeal may also be based, even if the law restricts the cognition of the appellate court of law, breach of condition cominado under penalty of nullity that should not be considered cured.
Outside the scope of this article. No. 410., No. 2 and 3, the appeal of the final judgment of the court of jury can have no other basis as to the facts, because the law does not allow the challenge of the facts by the review of evidence adduced at the hearing that could impose any decision different from the defendant.
Thus, unlike 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. "
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.
Recall that in Anglo-Saxon no appeal of the facts when the trial is carried out with the jury. The defense guarantees come from the choice of judges and the commitment of society that is represented here by them. On our right is not exactly so, but by restricting the right of appeal in matters of fact, the legislature intended to honor the work of the Jury, without affecting in any inadmissible way the constitutional rights of defense.
Hence, although the law requires that the statements made orally at the hearing must be documented in the minutes [when the court can have the means estenotípicos, or shorthand, or other suitable technical means to ensure the full reproduction of those, as well as in cases that the law expressly imposes (Art. 363.)] in the absence of such documentation, in cases where no hearing before the court of jury, is a mere procedural irregularity does not affect the rights of defense, because you are not allowed challenge the facts proved and not proved by a confrontation documentation.
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 their absence does not "Accused denies the constitutional right to appeal against that - art. ° -1 ° 32 of the CRP," nor determines the repetition of the trial as claimed by the applicant in completing the 7th of its appeal because the appeal of the facts is no more, in the case of trial by jury, the review of the evidence documented in the minutes.
The irregularity of the lack of documentation in the minutes of the statements made at trial should have been raised in the act, and having not been, nor constitute any reduction of rights of defense, it is considered cured (Art. 123. Of the CPP).

11. 3. 2. The applicant relies on the vices of insufficiency of the facts for the decision, insurmountable contradiction in the reasoning and error apparent on examination of evidence.
As we know, these defects must result from the text of the contested decision, taken in itself or using the general rules of experience, but without being able to make use of other extrinsic factors in the decision, as follows from the provisions of art. 410., No. 2 of the CPP. These defects can not be confused, as often happens, with an error of judgment, which would result in incorrect assessment of the evidence produced or failure of this defendant to justify the decision.
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 punishment, circumstances relevant to 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, the choice or determination of the penalty (among others, cf. the Judgment of 07/03/2002, Proc. n. No 1748/02 3rd Section, Summaries of Judgments of the Criminal Section, 2002 annual edition, p . 242).

The defect of the insurmountable contradiction between this and the reasoning or decision "occurs when there is proven and unproven as given fact, while at the same time it affirms or denies the same, while simultaneously give contradictory facts based as and when he settles down insurmountable conflict between the reasoning and contradictory evidence of the facts, or insurmountable contradiction between the reasoning and decision, when the opposite decision or justified reasons does not justify the decision '(judgment of 11/10/05, Proc. n. No 898 / 05-5. first, reported by the Cons. Costa Mortágua).
The apparent error in the assessment of evidence, in turn, consists of giving the court 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 principles or laws scientifically formulated, 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 regarding proof. There is noticeable error in the assessment of the evidence when, "at least, the evidence on which it based its decision could not substantiate the court's decision on those facts" (Judgment of 01.30.2002, Proc. N. No. 30 / 1/2002, the 3rd Section, Summaries of Judgments Sections Criminal, annual edition 2002, p. 16/17), and this proof can not be other than that which formed the basis of the grounds of conviction of the court, have seen the error throughout the text of the contested decision without recourse to extrinsic factors, in terms already mentioned. And in any case, the error must be visible to the average man, which is another way of saying that the error must be clear and evident, as has been postulated to almost the overwhelming majority of the High case, since otherwise , did not even admit that there could be intervention trials with juries, which have, as you know, decisive importance in the judgment of the facts, the most relevant and up with a unique sense in countries with a strong tradition of jurors, as case in the Anglo-Saxon countries.
Now, for alleged irregularities, failure of the facts for the decision clearly does not occur, since the facts acquired is sufficient for the decision of law, ie to face the legal solution of the case sub judice in the various aspects relevant as possible, including the conviction or acquittal in light of the facts alleged by the prosecution and the defense and the ensuing discussion of the case.
It turns out that the applicant, refer to the addiction field proven insufficient for the decision, intended to allude to the evidence adduced at the hearing for discussion and trial, ie, error of judgment and not error-vice, escaping that, as we have seen, the control of the Court. The proof has to be considered, as mentioned above, the evidence upon which it convinced the court to thereafter and in conjunction with factual matter based, see if such evidence could not support the facts that were given as proven but in this case, not by virtue of an insufficiency of the facts proved, but as a result of an incongruity, inconsistency or illogic patent, or for violation of rules of general experience, scientific principles or rules or principles relating to the test and that impose such limits on the discretion of trial and error that just because the patent had not been considered or had been postponed. In the latter context, we may already be lying in the field of principles governing the free assessment of evidence, the application of which is also called into question in this appeal, and noted that, in the intertwining of issues is not always possible to partition the various fields, such they are overlapped each other.

The court "a quo" as was said, gave ample reasons and an extremely thorough in their conviction the facts. Indeed, beyond the concern that should always guide the court, any court in respect of reasons, since it focuses around the touchstone of every decision and a fundamental aspect of the 'compromise' democratic sovereign body 'courts' with the people, as well as a result of the rule of democratic law (Articles 2., 3. º, 202., no. 1 and 205., no. 1, all of the Constitution ) the case would require a thorough reasoning as far as possible from the outset because, not having appeared the victim's body and therefore have not been conducted examining the relevant body to determine the exact cause of death, the conviction is based largely on evidentiary proof, adding that the defendants opted by the right and there is no direct witnesses of the facts.
However, the court "a quo", aware of this reality, miudamente began by examining the testimony of all witnesses who testified at the hearing, which, though they had not seen the facts that formed the basis for prosecution, reported, however, "the facts important for the conviction of the court ", as noted at the beginning of this reasoning.
What brought relevance of such witnesses relates to events occurring before and after the death of the child, a "before" very close to the event, also involving a previous history of family relationships, especially the relationship between mother and child, and an "after" moments ranging from the immediate commission of a crime until moments apart, stretching the days that followed the disappearance of DC and lower during which important events took place from the standpoint of its significance for the ' reading "of what happened.
The evidence brought by these indirect evidence or evidentiary were combined with other evidence, such as the reconstruction made by the defendant AA, expert evidence or the personality of the accused, whether the traces collected on-site follow-up searches and seizures, finally, witness evidence, the that, all combined, according to the rules of the experiment, allowed the court to draw the inference that both defendants practiced the facts that led to the death of the lower CC.
Therefore, these elements were all housed in a whole or a substantial and significant unit, that is not lawful, right under the rules of the experiment and also incindibilidade conviction, to divisions or compartmentalization, especially the temporal character (which happened "before" and what happened "after", as if the "before" and "after" is not inter-relacionassem to produce a meaningful set), which structured the conviction of the court, which, incidentally, is presented in a cohesive and logical unit.
However, the court "a quo" after doing a tour, as indicated by all the evidence produced, describing the relevance of each witness who referred to the court and stating all the evidence which formed the basis for conviction, integrated by the general rules of experience, particularizou the evidence that served to give the facts as proven integrators of the crime of murder, specifically referring to the field proven in points per year), c) d) e) f) g) h) , i), j), l), am), n), p), aah), aai), aaj) and mc), indicating the conviction based on the testimony of witnesses AA3, CC3, CC4, DD, CC8, II, DD1, MM and BB1, the case of reconstitution, the case of search and seizure and the subsequent expert testimony.
Among this evidence was given, says the self reconstitution in which the defendant AA exemplifies how the crime was committed. This reconstruction was not, however, assessed per se, but in connection with all other evidence submitted, which show the compatibility of reconstitution with these tests and those with that, referring to the decision in detail all the evidence and combining them critically with each other in order to highlight the logical process followed by the court to arrive at the conviction that arrived.
Thus, the collected blood traces in the room (on the floor and walls) where the crime was committed and where the restoration was made, and exact location of those, the remains of the same kind found in the shaft of the bucket and mop that the defendant is served to provide for their removal, the blood traces of the human species found inside the rear of the second drawer of the freezer, explaining how the court from the testimony of an expert witness (an expert), came to the conclusion that these had traces of lead placement or attempted placement of a drawer in this part of the human body and not handling it in the hands of someone injured, the diverse carreada evidence by the witnesses interviewed, which, if not provided direct evidence of the facts probands, reported however considered relevant facts and that came together like pieces of a 'puzzle' for the intelligibility of the action of the defendants.
These witnesses testified in a way that could be represented by the smallest steps taken in the moments immediately preceding the crime, the journey made by her since she left the 'Pastry Celia', reconstituted with a chronological accuracy confirmed by several witnesses, until almost the moment they entered the house, where no one actually saw her enter, but you can take for granted, from various statements and in particular of the AA3 - to the witness who was smoking at the window when he saw the slightest move towards home, and the short distance between his residence and was the smallest and not having glimpsed movement in the streets, neither cars nor heard any scream.
Other witnesses reported other relevant aspects which, although situated chronologically after the crime, not without significance as this, while elements combined in a meaningful unit, such as those referred to the carelessness of the defendant with the 'disappearance' of smaller 'accepting it without despair or distress, "that the defendant had not immediately reported to the police the alleged disappearance of smaller, being the owner of the bakery said that concerned about this alleged' disappearance 'after viewing, closed the establishment at 24.30 h., that the defendant had not made the pretext participation of not having money on the phone, did their communication. And a number of other elements, such minudência with the decision, as the scene of the shoes of the child, who were all (all she wore, including those brought shoes that day) at home, unable to avoid the defendant falling into contradiction, when asked by the witness in that regard BB1, sister of fellow who was sharing his life.
Moreover, the testimony of fellow applicant, II, who said that the appellant told him, when the witness, during a visit to the dungeons of the PJ asked him what happened, who "had given a slap on the CC and AA just a kill 'and all because she had seen having sex with each other, and the testimony that the stepfather II, who also noted that, during a visit to the same dungeons, the defendant AA, your question, replied that "was having sex with my sister "and that" had killed the girl. " However, because the applicant has questioned the value of such statements, on their value will weave autonomous timely considerations.
Also the testimony of agents of the PJ who were present at the time of reconstitution and reported on what she observed were the basis for conviction of the judges. On such testimony we also focus our analysis in a particular way, having the same was challenged by the applicant on its legality.
The reconstitution of the self dismemberment of the body, made by the defendant AA, and which saw, among other witnesses, a forensic expert, who heard in open court, told how the defendant made the reconstitution, the objects used for effect (a metal saw, suitable for cutting bones and muscles, and a knife, cut nerves and tendons) and the help that he gave the defendant in this operation, the statement he made about the introduction of various body parts in the drawers of the cabinet cold and it was proven the strong possibility that these objects were actually used (the mountain is probably belonged to a fellow defendant, that from the date of the crime has left to do) entered, along with all the elements mentioned above, training in the conviction of the court.
As well as all the behavior of the defendant tending in the following days, to erase the traces of blood that remained, having acquired an oil and wiper wire for this purpose.
As yet the synchronization of movements between the two defendants in a real fight against time and against the suspicions that might attract.
Anyway, all this material was probative evidentiary and other evidence not mentioned here but constant motivation that is reproduced in paragraph 10., Which combined with each other and with the rules of the experience provided the basis for the conviction of the judges, whose explanation was objectified far as it could be, and always includes the conviction that there is some room recondutível to terms of pure rationality, but shall not be able to speak of arbitrariness, since even the cognitive activity that involved the acquisition of so-called 'objective knowledge' does not obviate a certain load of emotion, subjectivity and objectivável not entirely convinced, as philosophers and scientists have pointed out the strain of Fernando Gil (The Hustle) and Antonio Damasio (Descartes' Error and Looking for Spinoza).
It should be noted again that the belief thus formed was acquired by a grand jury, which has greater legitimacy because its constitutionalization for judging the most serious crimes, although their participation is not mandatory (art. 207. º of the Basic Law), are among the fundamental principles of democratic rule of law with regard to the democratization of the judicial organization (JORGE MIRANDA Constitution and Democracy - Library Petrony, 1976, p. 308 et seq.).
This does not mean, of course, 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 be 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 of concentrated own source which emanates sovereignty and therefore improved reliability.
This reasoning supports plausibly, according to the process that was objectified in logical reasoning that guided the interpretation of all tests combined with each other and with the rules of experience, the decision was taken on the facts. Indeed, this solution appears as a logical consequence and reflects the reality of things, given the evidence that they served the court and the lessons that according to this reality - the experience - they allowed.
Hence it can be said that the decision in fact complied with, in addition to compliance with the obligation to state reasons, the principles inherent in the free, but not without cause, formation of the conviction of the court, according to the criteria of art. 127. Of the CPP, not appearing as arbitrary, illogical or mere expression of the subjectivity of judges.
Now, combining the merits of the conviction with regard given to proven and unproven, it appears that the contested decision not vitiated by any of the vices of art. 410., No. 2 of the CPP, namely: the lack of the facts proven to the decision of law, the acquis is factual enough for such decision and the court having found all the relevant material, according to the indictment and defense, the insurmountable contradiction between this and the reasoning and decision, which does not occur at all, and especially noticeable in the error assessment of the evidence, and the correction of a corollary of all that was said previously. The appellant clearly confounds all these vices with which, from their point of view, it would be an error of judgment, ie, an error of assessment and evaluation of evidence produced, which is beyond the cognitive powers of the Supreme Court, which can only be stick to the defects manifested in the text of the decision, by itself or in conjunction with the general rules of experience.
But here are a few issues in particular, focused on the motivation of appeal.
11. 3. 3. Statements of the defendants
The applicant intends to allude to the reconstruction whose video containing the clarification that AA co-defendant was providing the purpose of reconstruction was shown at trial. Now, about this issue to some extent our opinion (see the preceding paragraph. Paragraph 11.1.) Here we consider the legality of the use of such evidence at the hearing, despite the silence of the option made by the defendants, not confusing the reconstitution with statements of accused given on inquiry or investigation, which differ structurally. And we said enough about the nature of verbal discourse produced by the defendant AA during this diligence, which corresponded to the verbalization of the act of restoration, which is not purely an act dumb, but made use of several languages, mainly sign language and oral. And as regards the latter, the 'speech' produced by the defendant has not met the "declarations" in the strict sense or technical legal, but the explanations or clarifications of the steps that was developing in the reconstitution of the crime, often the request of the Board criminal police or prosecutor, who asked the defendant to clarify, for example, the exact positions of the players (he, defendant, the applicant and lower), where the slightest hit his head following the attacks, the crash site, where the position was, and who exemplify certain scenes, serving to either a bank, which represented the lower body.
In this context, we conclude that such clarification or information provided by defendant to allow the reconstruction were not statements that were covered by the prohibition of Art. 357. Of the CPP. Moreover, the court "a quo" was not served, for the formation of belief, the video was shown, as was expressly stated in its motivation, it actually did not indicate that the 'statements' or information that the defendant was debited in the reconstitution had been used as the basis for that belief. What served as the race was his own self reconstitution, where the substance was precipitated diligence.
On reconstitution, the defendant AA involved the applicant. However, this involvement is not the result of statements of co-defendant, but a piece of evidence with different configuration, as noted. Indeed, it was not a result of statements made by the defendant AA, who chose to silence at trial, the appellant, who also opted for silence, was reached. It was a result of a reconstruction made by him, which is an evidence that can be asserted at trial, notwithstanding the defendants choose the path of silence concerning the matter of criminality, as has been duly noted.
But even if you want to assimilate this part of the reconstruction (ie, the part that incriminates the applicant) to statements of co-accused or simply draw a parallel with them, for the purpose of applying to it an increased demand for proof, that requirement that it needed in corroborating the statements of co-defendant by other evidence, especially given the fragility of these statements, as has been referred to the doctrine, particularly TERESA PIZZARRO BEAUTY ("So we were friends": the probative value of testimony co-accused in the Portuguese Criminal Procedure, "Journal of Public Prosecution, n. No. 74, p. 39 ff.) and ANTONIO ALBERTO MEDINA Seiça (Knowledge Probation Co-Defendant, Coimbra Editora, 1999, p. 205 ff.), and also the case law of Supreme Court (among others, judgment of 30/10/01, Proc. n. No 2630/01 - 3. th, rapporteur - Director Armando II, of 17/11/02, Proc. n. No 3210/02, 5. th, rapporteur - Pereira Councillor Wood, of 5/6/03, Proc. n. 976/03 - 5. th, rapporteur - Councillor Seamus Santos, 18/11 / 04, Proc. n. 3272/04 - 5. th, rapporteur - Carmona Councillor Mota and 4/13/05, Proc. n. 648/05 - 3. th, rapporteur - Director Antunes Granxo) right is that reconstitution was not the only evidence that he served the court to give the applicant as comparticipante the facts.
As we have seen, was all the evidence produced harmoniously with the reconstruction, the dialectical inter-relationship over and over, which contributed to the formation of the conviction of the court. The reconstruction of the facts, the way the defendant AA showed that they were committed, including the applicant's participation, set to the knowledge brought by the other evidence, even if not direct evidence, making it likely that recovery, and other evidence, in turn, another acquired (integral) with the legibility reconstitution. The contested decision expressed the same idea this way: "The rebuilding self (...) 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. "
This entire body of evidence, this fills the requirement of corroboration from other evidence, that the doctrine focused, divergent from another current doctrine, you wish to view the statements of co-defendant proof prohibited, with the consequent prohibition of their valuation ( among us, see SANTIAGO RODRIGO, "Reflections on 'The Accused Statements" as evidence in the Criminal Procedure Code 1987', Portuguese Journal of Criminal Science, 1994, n. 4, p. 27 et seq. ) and also mentioned the case require, in order to give probative value to the statements of co-defendant.
Therefore, by adjusting the mixing, with the result of other tests, the fact translated into the suppression of life of less CC, it also conforms to the fact that this result has been produced by the action of both defendants. Not only for the undeniable fact that both defendants being at home when there was the slightest his tragic end, as by virtue of all cognitive acquisitions that allowed other evidence from the traces of human blood that persisted cited after lengthy cleanup actions carried out primarily by the applicant, but also for any behavior that had already immediately wiping the blood stains that remained on the floor and walls, now collaborating with the accused in dismemberment of the body and its placement or attempted placement in the drawers of the freezer, already showing an attitude totally lagged relative to the pseudo-disappearance of the child, not communicating the fact to the police immediately, under the pretext of not having money on the phone, already showing a carefree attitude, according to certain witnesses, and synchronizing their actions with those of the defendant in a way that can be considered perfect in order to divert suspicion from anyone else.
One such behavior immediately if references to the crime of concealment and desecration of a corpse, can not fail to have a deeper meaning, according to the rules of experience, about the fact that produced death, because it would be a normal mother do so if itself did not have an intimate connection to what has gone before, that is, if he had not participated in the facts. A son who fall dead on the ground is not exactly a piece of crockery that is part and whose pieces are removed as soon as possible to be thrown into the trash with this feeling that usually accompanies such accidents: "Patience! No more! "
Now, all this evidence and in particular the reconstitution were 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. Anyway, apart from rebuilding itself, were interviewed witnesses who saw the act and that the applicant had the opportunity to contradict an audience, formulating the objections that may or may understand and putting call into question the reasons for its credibility, particularly in what affecting its position as comparticipante the facts.
Thus to conclude, even making the assimilation of the measure reconstitution with statements of co-defendant to the extent that the defendant AA involved the applicant to comply with the requirements of particular care in the acquisition of proof that the doctrine and the jurisprudence of this Court associate with the statements of co-accused, in particular as regards the requirement of corroboration by other evidence.
11. 3. 4. Testimonials from members of the Judicial Police.
The appellant challenges the legality of such statements, they having been provided, as already mentioned, in the context of reconstructions that were made, given that the reconstitution of the dismemberment of the body, other people involved, as is the case of an expert forensic medicine, in addition to those police officers.
However, this question has been approached numerous times by this Supreme Court and it can be said that the resolution unanimously that it has received does not favor the applicant.
Indeed, the cases cited has consistently understood that the criminal police just can not testify at trial regarding the content of statements that have received and read which is not permitted, as is the case with previous statements made by the defendant when he opts for silence the trial, all in accordance with Articles 356., no. 7, 357. and 343 º., no. 1, all of the CPP, but not yet for facts that have direct knowledge obtained by means of different statements of the accused during the proceedings. Thus, among others, the judgments of 11/12/96, Proc. no. º 780/96 - 3. th (rapporteur: Rapporteur: Cons. Ribeiro Flores), from 22/05/97, Proc. no. 152/97 - 3. th (Cons. Abranches Martins) of 04.22.04, Proc. no. No 902/04 - 5th (Rapporteur: Cons. Pereira Wood), from 15/01/05, Proc. no. No 3276/04 - 3. th, is reported by Councillor Henriques Gaspar, having already been said in relation to the interlocutory appeal of the defendant, and the part that matters here, saying: "In view of the extent of reconstitution of the fact as evidence obtained independently for the process, and integration (or confundibilidade) in achieving the restoration of all the partial contributions, including the defendant, which resulted in concrete terms in which the recovery took place and their results, the organs of criminal police that accompanied the reconstitution can make statements about the manner and terms that took place, such statements refer to elements that gain autonomy, and as such many of the statements of the accused or other parties in the act, not being covered in prohibition of art. 356., No. 7 of the CPP. "
Therefore, the repair of the applicant is not justified in the light of this jurisprudence, which is also that we have followed, notably in Case 22/04/04, Proc. no. No 902/04 - 5. th and 8/7/04, Proc. no. No 1124/04 - 5. th
To this adds that those witnesses testified about other facts that directly witnessed, as the spatial location of certain rooms in the house where the facts were committed, and they found the remains where found, stumbled upon the state in which housing, particularly the evidence washing with a mop made of wire and oil, whose sales receipts were surprised in the possession of the applicant and that she, according to the testimony of these witnesses, attempted to rid the tracks that followed the false statements from the accused, the drawings made by the accused AA of the instruments that were used for the shredding of the body of CC, etc..
It would be completely misplaced under the law, which law enforcement authorities could not testify about all these facts on which its position is none other than the observer or observers and stakeholders, who participated in them because they had them a privileged knowledge. But the law, as we have seen, these interventions can not be excluded testimony only, for obvious reasons, the statements taken by these entities.
As emphasized Germano Marques da Silva (Course of Criminal Procedure, II, Lisbon, 1993, p. 140): "The criminal police can testify to all facts that have direct knowledge only and may not be the subject of his testimony knowledge they have obtained through depositions whose reading is prohibited or should be reduced and were not self, and the reading of self also prohibited. "
11. 3. 5. Testimony indirect

Two witnesses - a partner of the applicant, II, and stepfather of this, DD1 - reported assaults at trial by both defendants to the lower, the first of which stated that the appellant told him during a visit at the premises of the Judicial Police upon request but at a time when they were alone, who "had given a slap on the CC and AA just to kill ', and second, that the defendant AA, also on the premises of the same police, he confided that he" had killed the girl. "
It is hearsay evidence. Moreover, the deponent II said that the applicant subsequently and now prison in Odemira, denied the assertion made earlier, saying it was not true and that it had produced because the PJ had hit him, being sure that it does not showed signs of having been assaulted.
However, these witnesses were evaluated according to the principle of free assessment of evidence and were not valued in all its dimensions or literally, otherwise the facts found and unproven would have been different.
What is questioned is: could these testimonies have been evaluated according to the mentioned principle?
The law says that the hearsay testimony only counts if you specify the person to whom it is heard and the judge to call that person to testify, unless the inquiry is not possible for death, supervening mental disorder or inability to be found ( art. 129., no. 3 of the CPP).
The purpose of the law is, in substance, to make proof of the facts probands is direct, immediate and bodies subject to the defense. This goal contend, therefore, the nature of the adversarial process, involving the defense guarantees (art. 32., No. 1 and 5 of the Constitution), the realization of the principle of contradiction, that those falls, here under the form of ability to engage in cross-examination or cross examination of witnesses, and the principle of immediacy. Principles, as seen if linked with the nature of criminal proceedings root acustória-democratic, as opposed to an inquisitorial process, undemocratic, as pointed out in his famous COSTA ANDRADE opinion published in the ECR (CJ), years VI, 1981, volume 1. º, p. 11, in the transition phase that mediated between the entry into force of the Constitution of 1976 and the entry into force of the new Criminal Procedure Code, that occurs only in 1987.
The proscription of outiva testimonials or hearsay, in line with the rights of Anglo-Saxon roots, which forbade the hearsey evidence, was not, however, absolutely devoted. As we have seen, the indirect evidence is not normally count as evidence, and, to that effect be confirmed by the person named and, therefore, immediately to put indirect party if the witness refuses or is unable to indicate the person or the source which gives rise to transmitted information. But in the cases cited in the statement of persons nominated is not possible for death, mental disorder or supervening impossibility of these people found the testimony valley with indirect evidence, and may as such contribute to the formation of the conviction of the court.
In the words of the Judgment of the Constitutional Court no. 213/94, reported by Councillor Mendes Ribeiro, and that makes a tour of doctrine on this issue, this exception appears to be "as provided, it is precipitating a proper balancing of the interests of the accused in able to confront the testimony of prosecution witnesses, the prosecution of, pursued by the public prosecutor, and, finally, the court, concerned with the discovery of truth through a fair and regular trial (due process of law) 2 ⌠ DR . ª O ⌡ 23.08.94.
In this case, the impossibility result of the defendants have chosen the right to silence. But is this case, the person being present and not willing to make statements pursuant to their special status, which is to be argued, can not in any way the testimony of any effect of evidence?
The issue seems to respond in some way, although in the context that is not entirely coincident with these cars, another judgment of the Constitutional Court - to 07.08.1999, reported by Councillor Benedict Messiah - Case no. No 440 / 99, delivered in Proc. no. 268/99, which ruled on a judgment of the Supreme Court and available on www.tribunalconstitucional.pt / tc / judgments.
In aresto was concerned the valuation according to the principle of free assessment of evidence of testimony of a witness who said he heard himself accused of the facts reported, and this defendant called to testify, did not want to do, in the exercise of his right to silence.
The factual, however, contained some "nuances", as noted above, reads as follows: witnesses (because they were many) had also participated in the facts, but in that it did not participate indirectly testified, referring to the source from which they had heard what they reported. All nominees were called to testify and could be contradicted. However, the defendant in question, also indicated as a source, escudou the right to silence.
Now the Constitutional Court began by refusing to equate this to the absolute impossibility, due to the law itself, to question the defendant mentioned. And then went to another equation: that "there is no substantial difference between the situation of the accused can not be found and the one who called the hearing, invoking his right to silence not to testify." And so, in the context of that process, with the characteristics already mentioned briefly, concluding that the witnesses could be contradicted, that there was no evidence which had settled exclusively on indirect testimony, the court having enjoyed such testimony with caution that the failure of hearing the power required and in accordance with the rules of logic and experience, so it is reasonable and provided that these statements had been valued as evidence, the TC finally decided that:
(...) Article 129., No. 1 (in conjunction with Article 128., No. 1) of the Code of Criminal Procedure, interpreted as meaning that the court may freely valuing indirect testimonies of witnesses to report conversations with a co-defendant, who called to give evidence, 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.
He added:
No hits, at least in the extent to which this standard was applied in the case.
In conclusion:
Therefore, no unacceptable shortening of the right of defense of the accused, such a rule is not unconstitutional.
However, caution is evident that the TC put in addressing the issue, care to give the outline of the situation and the particular qualms about restricting the effects of the decision and evidenced by the addition of the final part, we have put in focus, we believe that the case the file can somehow benefit from the theory here exposed.
Indeed, witnesses reported hearing the defendants talk about assaults on the lower CC. However, defendants present at the hearing, they used the right to silence and therefore were not asked about these facts, although their lawyers had been able to exercise their contradictory to these witnesses.
The statements presented other features. In the case of the witness II, it was stated that the request of the applicant challenged PJ to BB about what happened, but at the time the witness and the defendant were alone in the room, going even later, during another visit, the applicant desdisse what before had said, pretending to have been assaulted by members of the PJ, but not having seen the witness signs of aggression, which, incidentally, speaks well for the authenticity of the witness.
Moreover, the statements are fairly vague, for he stated that the defendant II BB said that he had "given a slap in the CC and AA had just killing 'and the witness stated that the defendant DD1 AA said that" had killed the girl '. In both cases, the controls indicated that the accused that they were reported to have intercourse with each other when the lower into the house.
However, the court "a quo" valorou these statements in accordance with the principle of free assessment of evidence, but this assessment does not appear to have exceeded prudence. On the one hand, having been completed, the motivation of the conviction, the sharing of both defendants in the application of physical violence on the child, who, by way of addition, said the testimony of said witnesses, beginning this paragraph, near the the end, thus significant: "Furthermore, relatively to the same actuality ...", suggesting a more critical in relation to the test already explained over tens of pages. On the other, proved not consider sex and just seems to have retained the testimony which was already proved by other evidence, ie, aggression and small.
Thus, as in the judgment of the Constitutional Court, we can consider that the inability to hear the source cited by the witnesses, resulting from right to silence to which they forwarded the defendants, so that nothing of the facts stated versed in the statements, in the presence at the hearing, is not substantially different from that under the law of impossibility of the person indicated to be found. And adding to this the facts that the evidence did not result in exclusive statements of these indirect, because 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 source and imposed according to the rules of logic and experience would seem that the valuation of the statements in these terms does not hurt for the provision 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.
Even though, it was to consider such statements as null effect on evidence, and since it is not about a piece of evidence prohibited in absolute terms, and therefore has no effect at a distance, the invalidity or communicate to any evidence obtained by virtue of the freedom of the court conviction, the consequences that could result would be simply to remove the effect of proof of such statements, which, considering the probative contributions that came in the formation of the court and on conviction, but even marginal importance of that testimony would not significant consequences for the result it reached, in terms of conviction, the court "a quo", outlining why not change the facts given as proven and unproven.

11. 3. 6. As to the applicant submits that the evidence in evidentiary matters, including the interview which states that language used in the past and wore clothes that are - let the metaphor - water drops in the ocean. These are details that are mentioned in the decision, not as important that the applicant intends to assign them in the set of all behavior manifested by it and has dilucidado. Therefore, these details refer to a wrong analysis of the facts, in addition to translating a disagreement over the assessment and evaluation of evidence produced that escapes, for reasons already repeatedly been adduced, the powers of cognition of this Court, which are, in the case , a magazine for the extended (ie, the review of matters of law extending to the vices of the art. 410., no. 2 of CPP), means taking part for the whole, or, to use another metaphor common usage, to confuse the tree to the forest.
We will not therefore waste time with such matters.

11. 3. 7. Beginning in dubio pro reo
Refers the applicant to breach of the principle in dubio pro reo, which is enshrined in the Constitution in the form of consecration of the principle of presumption of innocence of the accused (art. 32., No. 2).
The in dubio pro reo principle applies to the facts, not to the point of law, and has to translate that "the persistence of reasonable doubt after production of proof must act in a manner favorable to the accused and, therefore lead to the consequence imposed in case of having achieved a complete proof of the condition favorable to the defendant "(Figueiredo Dias, Criminal Procedural Law, p. 215).
Conexionando with the facts, he acts in all aspects relevant fictional, whether they refer to elements that are typical of criminal offending - such incriminating, the two facets that unfolds: objective type and subjective type - whether they relating to the negative elements of the type, or defenses, or, according to a more updated terminology, types justifying, or at the relevant circumstances in determining the penalty.
This Court has understood that the STJ can syndicate the principle in dubio pro reo, if the decision is clear that the appeal court was in doubt about any fact, and that this state of doubt, decided against the accused (among other , the judgments of 06/05/03, Proc. n. 976/03 - 5. th and 7/12/05, Proc. n. 2315/05 - 5. First, both reported by the Cons. Simas Santos , and 7/12/05, Proc. n. 2963/05. 3rd, reported by the Cons. Ribeiro Flores), or when, failing to recognize the appeal court that doubt, it results evident from the text of the contested decision, by alone or in conjunction with the rules of common experience, that is, those cases in which one can see that the only question was not recognized due to error in the assessment of evidence, pursuant to art. 410., No. 2, point c) of the CPP (among others, the judgments of 30/10/01, Proc. N. No 2630/01 - 3. First, reported by the Cons. Armando II, 6 / 12/2002, Proc. n. No 2707/02 - 5. first, reported by the Cons. Oliveira Guimarães, and 24/11/05, Proc. n. No 2831/05 - 5th, reported by the Cons. Costa Mortágua, having it here as assistant rapporteur).
"The inquiry of the principle in dubio pro reo is limited to external aspects of the training instances of conviction: to stay there-by the requirement that such conviction is objectified and motivated in the critical analysis of the evidence, it is the expression of a process convincing rationale that supports the final conclusion of the valuation made by the appeal court of this or that evidence "(Ac. of 20/10/05, Proc. n. No 2431/05 - 5th, reported by the Cons. Pereira Wood).
Therefore, the violation 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. However, that syndication has to exert itself within the limits of cognition this Court should therefore clear from 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.

The applicant claims to have been violated in dubio pro reo principle, as a result of all the deficiencies pointed out that the decision to devalue is rebuilding as proof that he could not have been reproduced at the hearing against the silence of the accused, either by considering it contained statements of co-defendant could not enforce against the applicant, is yet to understand that the law has been recovered from indirect statements or testimony of police authority, or because the evidence was insufficient to convict, there has been no direct evidence crime or has been incorrectly valued the evidence against him carried by the scarce evidence. But all this has already been extensively discussed in the preceding paragraphs, it was concluded through the logics, rational and in accordance with the rules of the experience of the conclusions regarding evidence with the direction shown by the analysis of various types of proof that the motivation of thoroughly convinced highlights.
Thus, we can only conclude that the contested decision is not an infringement of patents in dubio pro reo principle, in whatever form we saw that he could be revealed.
The remaining problems, particularly with regard to the qualification of the crime and the sentence, they will be analyzed further, together with the analysis of AA application from the accused and the prosecutor.

12. Appeal of defendant AA

12. 1. Nullity of the judgment:
The applicant relies nullity of the judgment that we will travel quickly, because it expresses its lack of reason.
He says that 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 resting for more than 80 hours.
The truth, however, is that "physical and psychological" is not documented in the file (or course ever was). But more importantly, in addition to the prosecution, represented by Attorney Circle, the defender of the appellant was present at the time and did not raise the issue, which removes any doubt about the voluntariness of the conduct of the applicant, who freely wanted to work then, but now, the discovery of truth.
Unfounded the alleged invalidity.

12. 2. Document fls. 1885 and its validity
Does the applicant, too, "the document fls. 1885 is attached and an integral part of an official interrogation of the accused based on the investigation - fls. In 1878 - before a criminal police body, in which the witness DD was inquisitive, but by virtue of paragraph. 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 use to whom you have collected, which is the legal consequence incurable invalid, that can never be validated as proof or valued as such for purposes of conviction, what is happening. "
However, the hearing was considered the document fls. 1885 and not the statements of the accused based on the investigation, during which the document will be developed (a drawing).
Also unfounded is alleged invalidity.

12. 3. Relationship between the defendants
Invokes the applicant to give up on evidence that the fact referred to in subparagraph a) (defendants are brothers), the judgment is completely silent on the evidence that formed the basis for training the conviction of the court, in full breach of the duty to state reasons imposed in art. 374 paragraphs., no. 2, and 379., paragraph a) of the CPP.
However, the identification of the accused before the court at the trial, in which they were required to answer truthfully say they have the same parents. The evidence, therefore, results from their own statements, and therefore the court did not have to justify what they themselves have admitted.
Also there is no such nullity.

12. 4. Amendment of the facts contained in the indictment and contradictions
The applicant also argues that there is a conviction for acts other than those described in the indictment, which under subparagraph b), no. 1, Art. 379 of the CPP leads to the nullity of the decision here under challenge.
But not just any change in the facts of the indictment for the alleged invalidity occurs because many of the facts described in the indictment that generate nullity of the decision are only those that are 'out of the cases and conditions provided for in Article 358. And 359 º . No '. However, these standards relate to the conditions in which the court can make a substantial change or not substantial facts of the complaint and report on facts "with emphasis on the decision in question '(non-substantial change - art. 358. thereof) or which have the effect of charging the accused of a crime different or the aggravation of the maximum penalties (substantial change - art. 1. °-f).
And what are these various facts in the present case?
The appellant says that section 87 of the pronunciation - "Forgetting to keep the shoes in the bags that had the smallest shoes, so all your pairs of shoes left in the house," is different from that shown on the point): "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." Yet we see that relief has the conviction to the slight change wrought.

As pointed out inconsistencies between the point q) of the facts proven by the fact that no evidence given as in section 5, concerns the treatment that the defendant BB dispensed to his daughter, just saying about her, not realizing why why the applicant raises the issue when neither the defendant to whom it relates to the fact that up. The decision in this respect has not been issued against him.

The same applies to the point aab) against section 105, the applicant said: "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." This also has nothing to do with the applicant, but with the BB raised, not argued that the alleged contradiction or alteration.

And as for 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, which the applicant says are in contrast with the facts found, the most we can say is that it was up to the applicant the burden of explaining that these differences are "with emphasis on the decision of the case" because it does not for this Court to make a demand that only he, appellant, it was, for him and investigate the extent to which the defense was affected.
Moreover, it is unthinkable that the trial court was bound by the wording of the indictment, in its smallest details, and can not change anything (not even the wording, sometimes faulty or erratic) without prior knowledge of the defendants, because what the aim is to give when you have this knowledge is to ensure the full rights of defense.
So also unfounded complaint of these nonentities.

12. 5. Invalidity for lack of evidence indicating
Finally, the applicant states that the contested judgment suffers from insurmountable nullity for lack of evidence indicating that served to form the conviction of the judge. And that is also invalid because it does not contain the enumeration of all facts relevant to the decision of the case, proven and unproven, this time, those in the indictment.
These claims are not properly explained and are clearly unfounded, because the concern is gorgeous appeal that the court had to list all the facts proven and unproven, whether alleged in the indictment, whether the result of the hearing, since the defendants offered the merit the file. In addition it would appear that the reasoning and critical examination of the evidence was detailed and exhaustive, as already pointed out.
Manifestly unfounded these alleged nullity.

12. 6. Reenactments
As to the problems with the reconstructions, especially for the specificity of this evidence, other than statements or statements made in investigation or instruction and can be played in open court without violating the provisions of art. 357. Of the CPP, because such problems are common with those raised by the defendant BB, reference is made to the above considerations in paragraph 11. 1.
As to their value for the formation of belief in the whole of the evidence presented, we refer to paragraphs 11. 2. and 11. 3. 2.

12. 7. Statements of the defendants
Regarding the aspect of the defendants have used the right to silence and the collision with such alleged right of reproduction of previous statements, must confront the point 11. 3. Three., Where the issue was discussed with development.

12. 8. Statements from the criminal police
As the question exactly the same as the one suggested by the defendant BB, should see to what was recorded in paragraph 11. 3. 4.

12. 9. Defects of art. 410., No. 2 of the CPP, reasons for the decision of conviction and motivation
This part refers to the content of the explanation given in paragraph 11. 3. Two., Where the issue of bias has been extensively developed in correlation with the analysis of the motivation of the conviction and its compliance with the requirements of art of reasoning. 374., No. 2 of the CPP and the rules and guiding principles of assessment of evidence, particularly in terms of art. 127. Th same law.

12. 10. Beginning in dubio pro reo
Since this problem also common to BB defendant refers to paragraph 11. Seven., Imposing the theory developed here with reasons added to the applicant here.

13. It follows therefore that the appeal by the defendant AA not be upheld in any of the issues raised, which in his view the court would determine the process for a new trial.

14. Characterization of the facts
14. 1. Homicide
The facts, such as data were undoubtedly proven to substantiate the crime of murder, committed in reimbursement by both defendants and eventual intention.
Because, among other things, was established as a fact that:
At one point, 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, the mercy of the wall collisions, which also caused the collapse of the minor and his death, then stopping the activity of the defendants (as proven fact given under point b)
and (...) with regard to 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 the force knowing full well that, given the vital place that struck his body (head) repeatedly and violently, causing his head embatesse the wall, you could withdraw life result who accepted, yet not ceasing this activity (given as a fact proved in aaj).

In order to establish whether this intent, the court "a quo" served up as we have seen all the evidence in the conviction that lean, not just the AA recovery made by the defendant, and also relevant here, beyond of direct evidence, indirect evidence, allowing the apprehension of the facts probands from deductions and inductions objectiváveis ​​from evidentiary facts, (judgment of 07/09/03, Proc. n. º 615/03 - 3. th, reported by Cons. Armando Leandro) and having a sense proof unit that can not be separated as a unit of meaning that were seized, according to the principle of free evaluation of evidence and rules of experience by the grand jury.
The court 'quo' the motivation of conviction, not just stuck a piece of evidence, especially the reconstruction and the depositions of certain witnesses, but the whole race harmoniously appreciated your being visible effort to correlate all these elements .
And in the end concluded:
From what we can conclude that the representation made by the accused AA of reconstituting the self fls. 273 ff., Regarding 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 intuit that outcome.
And if this was so as to predict the outcome as possible, given the previously established as a fact ("successive blows to the head of the lower applied DC, causing it to hit his head on the corner of the wall, which is visible bleeding from the mouth, nose and temple, the mercy of the wall collisions, which also caused the collapse of the minor and his death, then stopping the activity of the defendants'), was also on the acceptance of the possible consequences in accordance with this prediction, and this subjective element , which is psychological, but also normative, being difficult to objectification in terms of rationality of the process of apprehending reality, it extracts all the behavior maintained by the defendants, analyzed under the rules of the experiment.
We have therefore a crime of murder committed in sharing and eventual intention.

But such a crime has been committed under conditions which must be highlighted, as relevant for the characterization typical.
We are referring to circumstances that aggravate typical qualifying especially the crime of murder, as are the art. 132. Of the PC.
This art. 132. No reports to murder him and the legislature has sought to organize a qualifying circumstances exhaustively before opted for an open formula, though girt to certain parameters, that leaves the investor a margin of weighting circumstances, case by case basis in order to determine whether this or that fact that part of the legal concept of murder.
It is a kind of guilt, which begins by setting out on your no. 1 a general clause or a criterion generalizing, using evidence relating to guilt: "If death is produced in special circumstances which reveal reprehensibility or perversity, the agent is punished with imprisonment from 12 to 25 years. "
But allied to this generic formulation "technique called the standard examples, which serve as criteria specializer, in which the general clause is implemented by various circumstances listed in n. 2, but so illustrative, not exhaustive (see Figueiredo Dias, Coimbra Comment Penal Code, p. 25 ff. and TERESA SERRA, Homicide Qualified - Kind Of Guilt And Measure Pen, 2000, p. 15).
Some examples of such standard, are formulated in n. 2 of art. 132. No this way: "It is likely to reveal the special reprehensibility or wickedness referred to in the preceding paragraph, among others, the fact that the agent: a) be descending or ascending, adopted or adoptive parent of the victim; b) Practice that particularly defenseless against a person by reason of age, disability, illness or pregnancy; c) employ torture or cruel act to increase the suffering of the victim; d) be determined by greed, for the pleasure of killing or causing suffering to excitement or satisfaction of the sexual instinct or by any unworthy motive or futile; e) be determined by racial, religious or political; f) take to prepare facilitate, execute or conceal another crime, facilitate escape or to ensure the impunity of the agent of a crime; g) Practicing with the fact that at least two other people or use a particularly dangerous or which would result in a crime of common danger; h) Use poison or any other insidious; i) act with coolness of mind, with reflection on the means employed or have persisted in the intention of killing more than twenty-four hours; ... '.
That these circumstances are listed only for illustration, is an unequivocal affirmation, as a direct result of the law, when these are states that, "among other" circumstances that can achieve the special reprehensibility or perversity. And, as might be expected, this is even the case law of the High Court (STJ Acs. of 11/14/2002, proc. 3316/02 of 12.12.1991, proc. 42640, 1992/05 / 06, Proc. n. No. 43109 of 12.16.1997, Proc. n. 102/98, 20.12.1990, Proc. 41 848, etc.., all in www. dgsi.pt.).
But the legislative technique resulting from the combination of n. 1 to n. 2 of art. 132. ° leads to a murder that may occur where there is any of the circumstances described in paragraph. 2 and it has not it is a murder, because, in this case, that circumstance can not prove "special reprehensibility or evil" (No. 1), as may have the opposite: a circumstance not provided for in paragraph. 2, but may be substantially similar to any of them (Comentário. .., p. 26) and can be incorporated into the special kind of guilt.
Come understand the doctrine, though divided, that the standard examples relating essentially to the question of guilt, rather than with the unfairness, as though referring to a greater devaluation of conduct (for example, murder committed in the person of parent or child), this circumstance is not, by itself, determines the qualification of the crime before the special agent reprehensibility or perversity, that is, the special kind of guilt Simas Santos Leal Henriques and indicate in the "Criminal Code Annotated" , II, p. 61 et seq., Which is not a precise statement of the Ac. 06.06.1990 of the Supreme Court that "in the case of parricide is the rule that there is special reprehensibility or perversity" because it must always be proven).
As they say in this Supreme Court Judgment of 11/12/1996, proc. no. 188/97 (www.dgsi.pt), "The qualification of the crime of murder is not an irrevocable consequence of the existence of any of the circumstances listed in n. 2 of article 132. of the PC. Essential is that circumstances in which the agent commits a crime show reprehensibility or special perversity, that is, a distinct reprehensibility or perversity (for its unusual severity) those which, to a greater or lesser degree, prove the authorship of a simple murder. "
It should be what is the special reprehensibility or perversity.
We would like to mention here again, Teresa Sierra (op. cit., Pgs. 63-65):
"As you know, the idea of ​​reprehensibility is the core concept on which is founded normative conception of guilt. Reprehensibility of the fact that guilt is the agent, that is, censorship is the agent was able to be determined according to the norm and not having done so. In the article 132. °, it is a particular reprehensibility: circumstances in which death was caused are so severe that reflect an attitude of deep spaced agent in relation to a determination in accordance with normal values. With special reference to perversity, has in mind an attitude deeply objectionable, in that it has been determined and an indication of motives and feelings that are totally rejected by society. This means therefore an emotional appeal to a conception of guilt and can bring up "the bad attitude, ethically speaking, gross and primitive egotism of the author, who speaks BINDER. So it would be able to characterize an attitude objectionable as that prevailing in the selfish tendencies of the author, especially perverse, especially objectionable, then it is the attitude in which the selfish tendencies gained an almost total dominance and determined almost exclusively to the agent's conduct . It should be noted that the classification of particular has recovered much of the perversity and reprehensibility. The reason for the classification of homicide lies exactly in this special reprehensibility or perversity revealed by the circumstances in which death was caused. Indeed, any homicide, while the legal injury is essential to human life, already shows the perversity of reprehensibility or agent who commits it. "

In the present case there is a special reprehensibility because, first, the defendant was ascending the lower BB, with a special duty not to commit the crime and even to avoid the result through appropriate action, under a special duty Guarantor (See TAIPA OAK, Commentary ..., p. 846 ff.) and secondly, because both defendants committed the crime against particularly defenseless person, by reason of age, because it is adult who assaulted, violently and repeatedly, a child in September 2004, was 8 years old, thin and with a height between 1.20 meters and 1.40 meters.
To this addition, and as regards the accused AA, the fact that the reduced thio, which on the one hand, it should confer a particular but not comparable to the mother, to care for the health and wellbeing of niece, on the other hand, gave him an authority on the same family.
Emphasize also that the two acted against smaller, practicing acts of considerable violence on her.
Such circumstances prevailing, together with the circumstances set out in standard examples (a) and b), no. 2, in the case of defendant BB, and b) if the defendant AA, a special show reprehensibility, plus a guilt that qualify the crime of murder, but only by those points, not also by d), as decided by the court "a quo" because, not knowing what the motive that led to the crime, that reason can not be ignored classified as frivolous or clumsy.

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, as in that accentuates FIGUEIREDO DAYS Coimbra Comment: "The murder is such such as homicide, only one type of fraud punishable under under any of the forms listed in art. 14. No: intentional, direct or possible. " This, even though it is not unaware of some dissenting voices, such as DAISY MARIA SILVA PEREIRA, Criminal Law II - The Murders, notes from lectures given to. 5 years 96/97, Lisbon, 1998, p. 71 and 72. Moreover, since this has been so decided by the Supreme Court, for example in Case 11/12/97, Proc. no. No 1050/97 - 3rd, reported by the Cons. Olive Guimaraes and 21.04.05, Proc. no. 3975/04 - 5th, the rapporteur of the same process.

14. 2. Concealment and desecration of a corpse
As for the crime of concealment of a corpse, pp by art. 254., No. 1, al. a) the C Criminal integrate all the facts proven their objective and subjective elements, so that the crime imputed to them in real competition with the former, giving reproduced by the considerations in the 1st instance.
The sentencing for the two crimes are fixed at the appeal decision of the prosecution.

15. Appeal of Public Prosecution
The prosecutor appealed the sentencing judgment, understanding that justified an aggravation of punishment for two defendants:
"In fact, as mentioned above, the purpose 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 that show appropriate and is required by the rehabilitation needs of the agent and the intensity of the warning which will prove sufficient to accomplish these goals, the defendants in the case of penalties imposed on them by default sinned.
One is that, given the seriousness of the crimes carried out by the defendants, the lack of any shows of repentance on his part and the conclusions of the expert in the file as to his personality, doubts arise about the possibility of some time to come to integrate normally society ...
But there seems no hope, with the relatively short term of imprisonment that were eventually convicted, such integration in normal life is facilitated see.
It is that, with the penalties imposed on them, you can not - as mentioned above - meet the requirements of special prevention that appear necessary for the case.
Do not forget that although it has been described as having acted with intent in the death of any child, this is the only element "mitigating" which is the conduct of the defendants (in addition to some collaboration with the police in the case of defendant AA). All other elements are aggravating the guilt of staff or to speak at the time of the crimes, whether in moments later. Just remember that to date have not revealed the whereabouts of the remains of the lower DC ...
"Benefit" defendants with feathers located near the midpoint between the minimum and maximum penalty for the crime of murder seems to us unfair and violates the rules that determine the choice of sentence.
Even if the crime of concealment of a body there is no reason not to apply to the defendants the maximum penalty provided in the abstract. For when - as it came to be understood - in this crime ended up consuming one another, the desecration of a corpse. Activity desvaliosa more legally and is not social. Can not see any case where you can get more illegality and fault of the agent in the concealment of a body (for more than one daughter and niece of the accused).
Hence, always saved due respect for the contrary opinion, to understand that the penalties to be imposed should be increased.
It is further understood that should the defendants be punished in the same way, taking into account that on the one hand, the devaluation of the action of the defendant BB is higher (lower was his daughter, and hence also the qualifying d a) of paragraph 2 of art. 132 ° C. Criminal apply to you) but which, in turn, accused the AA, unlike the sister (primary) already have several previous convictions, one specifically for a crime against life.
Thus, it is proposed to change the decision as follows:
- The defendant AA in 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 ° n. Paragraphs. 1 and 2, al. b) and
- 2 years in prison for a crime of concealment of a corpse, p. and p. by Art. 254., no. 1, al. a), both the Penal Code.
- The BB raised in 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, als. a) and b), and
- 2 years in prison for a crime of concealment of a corpse, p. and p. by Art. 254, no. 1, al. a), both the Penal Code. "

Now, do not believe that the prosecutor has reason for the crime of murder. Although it is highly objectionable to how the defendants acted, the truth is that this increase of reprehensibility is already reflected in the choice of qualified type. Worthless in the circumstances that the defendants acted either referred to the devaluation of the conduct or the worthlessness of the attitude of the agent as part of the type (of guilt), have been decisive for the qualification of the facts and can not therefore be re- valued based on the concrete determination of the penalty within the criteria of art. 71. Of the PC, under penalty of infringement of the principle of prohibition of double valuation.
On the other hand, the applicant estriba to an alleged conflict between the reasons expressed for the determination of the sentence and the sentences actually imposed, as in the contested decision, he used the words "you will hardly find a murder case in which the action the accused is more serious and desvaliosa '. However, this statement corresponds to a feeling more than a plea. It is a kind of emotional outburst, and that counts for determining a specific penalty is well-defined circumstances, relevant in terms of guilt and prevention, not statements made in comment style more or less impressionistic.
Moreover, the crime was committed with intent possible, according to actuality proved, ie, the most weakened of intent, which can not fail to have considerable effects on thirst for determining the sentence, especially since, as we have seen, is not even peaceful of all the compatibility of the crime of murder with the eventual intention. And if such a circumstance does not prevent us from moving forward decisively, according to what we think is the correct legal solution for the felony, the fact is that the controversy will translate at least a consensus on the nature of this weaker form of deceit, merit consideration in determining the sentence thirst for concrete.
Thus, contrary to what the prosecutor calls, the penalties are even lower compared to those imposed in the first. First instance.
At one point the prosecutor has reason: the sentences of both defendants must be identical, the decisive consideration that if the punishment fit the defendant BB should take into account the severity of the conduct resulting from the fact that the lower ascender, that should be applied to defendant AA has to weigh this factor in the accused has a criminal record precisely in the area of ​​crimes against life.
Thus, considering the factors that influence the determination of sentence, within the parameters established by Art. 71. Of the CP and in particular, the unlawfulness of a marked degree, the intent, which covers, as we said, the less intense sport of all, the high demands of prevention, whether general or particular, those translated into strong community expectations the "stabilization contrafáctica" violated the rule of law, ie, the need felt by the community in defending the legal system, and these well evidenced by the lack of social reintegration of the accused (positive special prevention), as shown by the personality skills, the fact that they have not confessed to the facts, not shown repentance and, in the case of the accused, said a criminal record, and considering that the requirements of general deterrence should be limited in its expansive tendency, guilt, we consider as more appropriate in the case a penalty of 16 (sixteen) years in prison for each of the defendants. Too bad it already takes into account, in both cases, the mitigating derived from its economic and social situation and cultural, with meager qualifications, without or without professionalization professionalization stable, born within families and alcohol habits by the father, and also the contribution made by the defendant in AA research, but in relation to the defendant, is negatively offset by the existence of criminal records in the area of ​​crimes against life.

Regarding the crime of desecration and concealment of a body, proceeds entirely the claim of the prosecutor.
In fact, the wrongfulness of the crime here reaches its maximum exponent, since there was only blind, but desecration of a corpse, particularly in terms repugnant, since the body was cut up, stuck in a freezer drawers in the house where they were all At the moment, to live (defendant and victim), and the defendants made these remains disappear, leaving no trace of them, and successively eluding law enforcement authorities about its location. As one reads the judgment, "by mutual agreement and joint efforts, showing total coldness and insensitivity towards the under 8 years old who had just killed, daughter of the defendant, to endow a knife and a saw and esquartejam the smaller the pieces of the body leading to an unknown location and that it has not been possible to determine what it is. The action is how committed this crime of concealment, it is especially so desvaliosa. As the result of the action of a mother to say that after killing his daughter he still denies the possibility of a funeral? There are no words to describe the worthlessness of the result. "
The guilt of the accused is also particularly strong, both having acted with the purpose of attempting to avoid prosecution. Do not confessed the facts, were not sorry and does not constitute mitigating, as regards the defendant, the absence of criminal record, since it is not proved good behavior and, conversely, the forensic expertise to your personality points to the existence a strong need for special prevention.
In a criminal abstract frame up to 2 years imprisonment or a fine not exceeding 240 days, the penalty is expected to be at its maximum - two years in prison, whichever is everything else here has already been said in relation to the determination of the sentence in crime of murder.

Reapreciando the facts of the world and the personality of the accused, for the purposes of art. No. 77. ° C. Criminal, being to highlight the expression of particular personalities worthless that all the facts reveals, fixed to a single penalty resulting from the accumulation of penalties from those fragmentary sentences in 16 years and 8 (eight) months imprisonment.
Thus, the use of the prosecutor proceeds partially.

III: DECISION
16. Consequently, we agree the judges of the Criminal Chamber of the Supreme Court on:
A) dismiss the interlocutory appeal of the defendant BB, maintaining the order under appeal;
B) partially uphold the appeals of defendants AA and BB, and consequently, partially revoking the contested decision, decide:
- Condemn them as co-authors of the crime of murder, and will be punished by Article 131. º and 132., No. 1 and 2, b), as the first, and a) and b), the the second, the penalty of 16 (sixteen) years in prison each;
C) the partial success of the appeal of the prosecution, to condemn them for the crime of concealment and desecration of a corpse, and will be punished in art. 254., No. 1, als. a) and b) of C. Criminal penalty of two years in prison;
- Accumulation of penalties in these sentences, condemning them in a single penalty of 16 years and 8 (eight) months imprisonment;

17. The defendant will pay BB, the decay part, eight UCs of court fees, attorney with half.

8. The AA will pay defendant, the decay part, UC 8 from court fees, attorney with half.

9. The defendants will remain in custody, because this sentence reinforces the requirements that led to the implementation of this measure, namely the fear of leakage and disturbance of public order (art. 202 s., No. 1 and 204 . °-a / c, CPP).
Notify.

Lisbon, 20 April 2006
Artur da Costa Rodrigues (Rapporteur)
Armenian Sottomayor
Carvalho Santos (arrears, statement of votes attached))
Costa Mortágua (expired)
Alfredo Gonçalves Pereira (President of the Chamber)
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EXPLANATION OF VOTE
In the project presented, the defendant argued that BB should be acquitted of the crime of murder but convicted of the crime of desecration and concealment of a body, while the AA accused should be convicted of two crimes of a serious offense to physical integrity, aggravated by the outcome (death) and qualified for revealing reprehensibility special agent, another desecration and concealment of a body.
I understood that in this case with gravity, in which there is only circumstantial and direct evidence, even as regards the effective death of the victim, the court must be limited to procedural truth, that is, the resulting value of law and order of evidence because the search for any "truth" can lead to a serious and irreparable miscarriage of justice.
A simple reading of the sentence shows that the only evidence that set the events that led to the death of CC is the smallest of the reconstructions of the events held during the investigation with the cooperation of the defendant AA, but without the presence of the defendant BB. There were no eye witnesses, defendants reverted to silence at trial, his statements in the survey could not be valued by the court and it was not possible to examine directly the corpse.
As the court found the jury that the child was beaten by the two defendants? And how did that struck his head on the corner of the wall? And it was apparent that bleeding from the mouth, nose and temple, the mercy of the clashes on the wall? And that such clashes and fall caused death of a minor? And it is ensured that the two suspects (!) Of the lower death? And who then dismembered the corpse and put him in plastic bags in the drawers of the freezer?
The answer to these questions was obtained solely by the defendant AA reconstructions, because other evidence indicated the sentence can state that there was a death but not how it happened and who caused it.
Although it is possible to argue that the reconstruction of the facts have probative value on its own against the defendant that it worked, but it has not provided statements in open court - at least this has been the case from the Supreme Court - as the same can not be said about co-defendant who did not cooperate in the investigation, unless other evidence to corroborate the facts come.
In fact, it is not a prohibited form of evidence regarding the co-defendant, is however very fragile and should not be considered sufficient to sustain a conviction unless there is corroboration from other evidence because the defendant did not care that contributes to Affiant is not precluded from lying and is interested in shaking their responsibilities.
The valuation of the reconstructions without corroboration as to defendant BB, as it is illegal and unconstitutional and should have led to his acquittal for the crime of murder. Have not so much the crime of desecration and concealment of a corpse, because he could not have been executed by the defendant AA without the active cooperation of the defendant, with him in this place and time of the crime.
The grand jury determined that the AA accused acted with intent to kill, even though the title of any guile. However, the reconstructions discloses an intention to attack and not produced any useful evidence. If it had been proven the strong motivation that appeared in the indictment, it might be possible to conclude that there was intent to kill, even though the title of any guile. But not the motivation of the crime could be established.
Even after cutting and hiding the corpse tell us nothing about the intention of killing this defendant, or concerning the participation of defendant BB bodily harm in the least because they are known cases where the agent proceeded the same way despite the death not have been caused intentionally, provided they install panic and fear of police harassment. And do not conjecture that the child may have died as a result of these cuts, because the prosecution established that the lowest since then was dead, and such facts can not be changed in the Supreme Court.
In short, it is clear from reading the sentence that the court of jury, the points indicated, against the defendants and thus violated the principle of presumption of innocence which only requires the court to issue a condemnation as not reasonable doubt persists . And the conviction based on mere conjecture or possibly perverse and asocial character of the accused is also illegal and unconstitutional.
These are, in summary, the reasons for my disagreement.
To complete explanation, along part of the project that I designed and which failed due.

III

BB interlocutory appeal of the defendant:

III_A
The Code of Criminal Procedure establishes the rule that "the evidence is admissible are not prohibited by law" (Art. 125. Of the CPP (4).
Despite the wording of the legal norm seem tautological, it can draw that on the one hand, allowed other evidence that not only set by law, on the other hand, there are those who provided only become prohibited if they are obtained by explicitly excluded, including (but not only), through torture, coercion or, in general offense of physical or moral integrity of persons (Art. 126. °).
A set of evidence in the CPP 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 with the use of audio-visual materials. 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 before he had before, for example, to March 25, 2004, Proc. 248/04-5, rapporteur Counselor Rodrigues da Costa, this with 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.
4 - This is why the recovery is directed at obtaining a more perfect intelligibility of what happened - intelligibility in act, not exactly in words. So that only those who lived the event can reconstruct in a manner unmistakable.
5 - Not having the statements made by the applicant in the investigation and instruction, as defendant, was taken into account and he has opted for silence at the trial, although that can not disadvantage him, pursuant to art. 343., No. 1 of the CPP, however, been considered the other evidence, including the reconstruction of self.
6 - This, not being a self declarations, but an objective record of how the act was reconstituted and could be seen for who was there (the criminal police, other players) was not valued in itself or in a isolation but in conjunction with other objective factors, with other data observable by others, combined with other elements with it, thus allowing a reading to another level, not exactly recondutível the self itself.

In turn, the judgment of the Supreme Court of 05.01.2005 stated that 'The reconstitution of the fact, as evidence typically provided once held in compliance with the assumptions and procedures that are linked, autonomous individual contributions to who have participated and the information and statements that have co-determined terms and the result of reconstitution. The statements (rectius, information) that have prior or contemporaneous allowed or contributed to recreate the conditions believed to have been the fact, dissolve themselves in terms of reconstruction, mingling in their results and how the environment evidence is procedurally acquired (...) The privilege against self-incrimination means that the defendant can not be required, nor should be conditioned to contribute to self-incrimination, that is, has the right not to sell or provide information or elements (eg, documents) that the disadvantageous or not to testify without that silence may result any negative consequences or adverse inferences at the level of evidence assessment (see, eg, judgment of 3 May 2001, the Court European Human Rights, in the case JB c. Switzerland) (...) But since the content of this law, are outside its protective circle of the contributions of evidence, sequential and independent, that the defendant has made available or allowed, or that have enabled them to acquire the information provided, enabling the identification evidence and the corresponding acquisition or the realization and practice and pleading with their own shape and size in the list of evidence, as is the reconstitution of the fact. "

III_B
It should be noted that a concept is implicit in these judgments of the Supreme Court and that is particularly relevant in the present case. Because the defendant's verbal contributions that have been diluted to consider in terms of reconstitution are only those that prove essential to the understanding of the acts that the defendant intends to rebuild.
Thus, everything else at the time of reconstitution, the defendant has advanced and is beyond the scope of the investigation intrinsic, in particular because he was asked, beyond the scope of the evidentiary proof in question and must merit the same treatment of " informal conversations, "which, as the same Judgment," in procedural rigor, does not exist (cf., eg, the judgments of the Supreme Court of 30/10/2001, proc. in 2630/01, 3/10/20 for 2, proc. in 2804/02 and 07/19/2003, proc. 615/03: in doctrine, DAMIÃO da Cunha, "The Rules of Procedure of reading statements at the trial (Art. s. 356 º and 357 º CPP)" , in Portuguese Journal of Criminal Science, Year 7, Fasc. 3, July-September 1997, p. 403 ss, desig. 422-433). '

III_C
Another question is whether, in the case of co-authorship, in which the reconstruction works of the defendants can be used as valid evidence against another defendant who was unaware of this investigation.
We are dealing here with problems similar to the probative value of statements of co-defendant.
And on this subject, the Supreme Court have discoursed well as citing Judgment of January 29, 2004, Proc. 4247/05-5, rapporteur Carmona Councillor Mota:
"While the testimony of a co-defendant does not constitute, in Portuguese criminal procedural law," evidence prohibited in the sense of art. 126. Of the CPP "(Teresa Beauty, Journal of Public Prosecution, n. ° 74, ps. 45/48), the truth is that his" diminished credibility "(idem, ps. 48/49), the 'impossibility the sworn testimony of the accused in Portuguese law "(ibid., ps. 49/59), the 'right to silence of the accused" (idem, ps. 50/51), the "legal requirement for consistency of all faiths" ( idem, ps. 51/57), the "inability to commit to the contradictory testimony in the case of co-defendants" (idem, ps. 57/58) and the "impossibility of a cross-examination testimony in the case of co-defendants 'have led to the conclusion that doctrine:
"The testimony of co-defendant - if not in theory, evidence prohibited, it is however a particularly weak form of evidence that should not be considered sufficient to base a pronunciation, let alone to sustain a conviction";
"There is this statement (...) corroborated by other evidence, its credibility is null";
"His assessment was illegal and unconstitutional" (Teresa Beauty, Journal of Public Prosecution, n. ° 74, ps. 58/59);
"The rule of corroboration (5) in particular reflects an increased demand of reasoning, and their lack merit the reproach of a lack of reasoning" (António Alberto Medina Seiça, Probation Knowledge Co-Defendant, Coimbra Editora, 1999, ps. 205 ff.) (6).
Similarly, the reconstitution of the facts with the help of an accused is not a test to ascertain prohibited responsibility of another co-defendant who has not cooperated in it, but it is not corroborated by other evidence, its credibility is nil as this.

III_D
We now have evidence to decide the interlocutory appeal of the defendant BB.
No legal obstacle prevents or prevented the viewing in the hearing of evidence by reconstitution of the facts, despite the defendant AA, who worked actively in it, have used the right to silence.
This is independent proof, which contains contributions of the accused, but not to be confused with the evidence for statements. On the other hand, nothing allows us to doubt that the defendant voluntarily participated in AA and that this recovery was not subject to any coercion or harm the physical or moral integrity, as well as where to find the public prosecutor of the district, was assisted in act by his defender, who was present.
Thus, such evidence was not prohibited by law and virtuality had to appear at the trial through its audiovisual recording medium, for remember, the law allows the documentation of the act is done that way. And it is noted that the recording exists as a complement to the written self care, in which a photographic figure also, all included in the volume I, pages. 273-294.
And as evidence legally admissible and could have been the subject of discretion by judges, as was (Art. 127. °).
However, viewing the video of the reconstruction reveals that the defendant AA, on the pretext of reconstruction of the facts, was also subject to various questions, the way of interrogation, which was answered, and therefore provided many elements that can not fail to consider themselves out of mere strictly necessary to the scope of reconstitution.
Such statements, the spurious measure of recovery, could not stand as evidence at trial, because, being made without the necessary legal formalities, were no more than "informal talks" without any probative value. Thus, should have been purged from the video before exhibition in judgment.
The Court did not understand that way. But we are not facing a mistrial, because we must not confuse the nullity of the acts to which they relate to art. Paragraphs 118. To 123. Thereof, which require repeated measure zero (if not already resolved) and still of all who are subsequently affected, with the use of forbidden means of proof, because here its invalidity provides only that the proof can not be used (Art. 126., no. 1).
It is therefore, whether it was made use of a prohibited means of proof.
It follows that the "informal conversations" that can be heard in the video playback from 25.09.2004 reconstitution did not serve a basis for the court of a lower court to convict the defendants because they are not mentioned anywhere in the judgment. It is noticed until it had been one of the reasons for the decision, probably there would be no conviction for the crime of voluntary manslaughter because the defendant AA only admitted the practice of bodily harm.
Does the judgment under appeal at a certain step: 'No more, 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. "
Thus, it is not made use of a prohibited means of proof, because the court, after viewing the videotape, took only what was already documented in writing self, that is, acts of restoration and meaning of the fact that at the time you AA gave the defendant, by statements that were diluted in the diligence, and that participation was voluntary and the defendant out of any physical or psychological constraint.
But another question arises. It is that whenever a process is forbidden means of proof available to put the issue of whether, once canceled or invalidated, there are no other consequential effects, "the so-called" distance effect "," des Fernwirkung Beweisverbot "or, in formulating American "fruit of the poisonous tree." '(quoted in 3276-04 judgment, cited above).
These "fruits of the poisoned tree" are in fact cited by the applicant, as he says in his conclusion that "... even if it is not worth as evidence, the film was viewed, the jury saw it, and the lack of legal training, may lead them to ignore the rules, which, incidentally, are unaware of, and concluded that a fault when it's complete lack of evidence, and when another decision that is not an acquittal, would never rise. "
We do not know nor can we ever know if any of the jurors or judges was influenced in his heart, the "informal conversations" of the defendant, because it is a reality not directly measurable.
However, what matters to us in this appeal is the objective aspect and not the subjective. And the conviction of all judges, magistrates and judges, is objectified in the text of the judgment and for that we can make certain that there was no influence of such "poisonous tree." In any case, the Supreme Court has the necessary powers to intervene, even in the realm of facts, because the reasons for that was extensive and exhaustive, which facilitates the task of ascertaining where the conviction was based on judges'
The appeal raised the interim BB unfounded because his claim was that was declared void the order of the court allowed the jury that video viewing audience in the reconstitution of the facts and such invalidity does not occur.
However, over time we will see what influence had the reconstitution of the facts as evidence to convict the applicant and what the consequences that must be removed, since, as noted above, it is not corroborated by other evidence, the credibility as it is zero. And that assessment could be decisive in the final decision of this resource, not as a nullity of the sentence as the applicant claims, but is likely to assign a new configuration to the proven facts.

IV

MURDER, profanity and CONCEALMENT OF CORPSE WITHOUT THE "BODY OF VICTIM":

IV_A
As apparent from the facts proved (and is in the public domain) were never found or seen the body of the lower CC, even partially.
However, the two defendants were convicted of crimes which have the typical element and needed the victim's death.
This is cause for reflection.
We did not find any similar case which was tried in the Portuguese courts.
The doctrine and jurisprudence Portuguese are meager in information on this issue, which is not the case in Brazil, where the topic is widely debated and even has legal solution, possibly there be a more violent crime.
The Criminal Procedure Code of Brazil has in the art. 158. º that "when the offense trace, will be essential to a forensic examination, direct or indirect, can not provide him the confession of the accused," but the art . 167. paragraph states that "it is not possible to examine the corpus delicti, because they have lost the traces, the testimony could meet him miss."
UU, in the "Comments to the Criminal Code", V, 63-65, reflected on this issue as well:
'Proof of materiality of the murder. Murder is typically a crime material: it is inconceivable without the event there is death of a man. How often in crimes that leave traces, is the essential basis of the indictment, in kind, the examination of corpus delicti, that is, the finding of materiality of the crime. Not even the confession of the accused, no other element of belief, supplies the lack of corpus delicti because the penitent may have been wrong or be a morbid self-accuser, or have been coerced to declare himself the offender. (7) * An examination of corpus delicti may be direct (through ocular inspection and autopsy of the corpse, to investigate the cause of death, means that the produce, etc..) or indirect (through witnesses, when the trace of the crime can not be pericialmente checked). Is it possible the success of a prosecution for the crime of murder without the victim's corpse appear? Carrara said: "We can not say that there is crime of murder, until it is ascertained that a man killed by AIDS work of another. And you can not say that a man died there, while it is not his body or at least, their remains, duly recognized. " This criterion is too stringent and may in their irrestrição lead to impunity for perpetrators of murder manifestos. Considering the case cited by Irureta Goyena (: two individuals within a barge on the River Uruguay, were seen struggling renhidamente, being one of them shot the other to the stream, never to appear. We baldadas research to meet the corpse. But if, despite the absence of the corpse, the circumstances were such as to exclude another possibility that was not the victim's death, would be intolerable to leave is recognized in such a case, the crime of murder. Certainly lacked the physical, but there were absolute moral certainty of the existence of the murder. As correctly observed Goyena, one should not confuse the "corpus delicti" with "the victim's body," and the first proof of sufficient moral certainty about the occurrence of the event constituting the crime. Just as long as possible to make sure, however little, about the death of the missing victim of violence, which should eliminate the possibility of charging the murder. Eloquent warning in this regard was a film titled Fury, aired a few years ago, in Brazilian theaters. Its central episode was a crime mob against an individual suspected of kidnapping and had been taken to a jail. The rioters set fire to the jail, which was reduced to rubble. Among these was not found the corpse of a prisoner, but only recognized as a ring of its use. Deduce then that the body of the barsteward off completely consumed by fire, and although it was not excluded that the prisoner had managed to save himself, escaping without being seen by a gap that had opened in the wall of his cell , the arsonists were processed, and were on the verge of being condemned, when in full courtroom, pseudovítima emerged: the possibility of his escape and rescue, hitherto rejected, was the only true.
If the fugitive had not returned, moved by an impulse of generosity, the rioters have been unjustly convicted of homicide. Since a hypothesis is formulated in the absence of the event "death" is not admissible under a conviction of murder. The likelihood, however great, is never the truth or certainty, and only this allows a conviction. Order a possible offender is to condemn an ​​innocent as possible. "
And Júlio Fabbrini Mirabet, Manual of Criminal Law, 2, 19. Edition, S. Paul, 2002, p. 66 also states that "Evidence of murder is supplied by the report of a forensic examination (autopsy). When it is not possible to examine direct (the victim's body is not found or disappears), allows the constitution of the corpus delicti indirect witnesses, for example, not supplying the simple confession of the agent (Art. 156 and 167 s CPP) »
Magellan also Noronha, Criminal Law, 2, 27. Edition, S. Paul, 1995 p. 18, it says: "It is proved murder with a forensic examination, which as a rule, is direct. Failing this, it is acceptable indirect, made by witnesses. Irureta Goyena cites the case of two individuals who were seen fighting in a boat, and one of them daring the other to the current plentiful, and no body was found (9). For lack of direct examination is that it would still be charged with murder.
It should be stressed, of course, in which case there may be doubt as to the result which is binding, then the solution favorable to the accused. Remember, for example, that even the defendant's confession alone is not sufficient evidence, as in the case that invokes Carrara Chiaja of two sailors who accused him of having two young men who drowned, however, had been rescued and lived comfortably in Rome (10). Not only can be misleading as false self-accusation. "
Found in a sentence http://juris.tjdf.gov.br/revista/D647.doc exhaustive on this subject, the Judge in the Federal District of Brasilia, Dr. Leila Cury, where we collect the following excerpts:
Regarding the appropriateness of conducting a forensic examination indirect when it becomes impossible to achieve in the face of the direct examination of the disappearance of the victim's body, there is a case in the forensic literature, occurred back in 1964, but well known and quoted in the news on the trial of LEOPOLDO HEITOR, accused of killing and hiding the body of the victim of Teffé DANA. He accused filed several habeas corpus seeking his release and / or locking of their prosecution, but all were denied, given that one of them, judged by the Praetorium Exalted, was rapporteur Eminent Minister Victor Nunes, whose vote the following extract stretch litteris:
"... It is also alleged that materiality could not be demonstrated by the lack of body-in-crime, but that's not what happens, because the Code of Criminal Procedure, provides in its article. 167, this evidence can be made by witnesses, that is, indirectly, and the drafters, as Espinola and others also understand that that is enough for only the testimony of a witness. Now the Exalted Praetorium has spoken well about it, when the trial one of the "habeas corpus" filed by the accused Leopoldo Heitor, concluded the Minister Gonçalves de Oliveira why, if so, would be very easy to eliminate any criminal to his victim, hide your corpse and thus escape the penalty ... " (HC DJ 40.540/RJ 8/13/64, p. 02825 - highlighted).
In more recent times, another case very similar to that of Teffé and DANA M. County occurred in Uberlândia-MG, with the accused ANTONIO PORTE Daci and his victim as HAIL MARY DENISE LAFETÁ. This was judged by the jury of that county mining, at which Daci was sentenced to 13 years in prison.
(...)
I call again doctrinal understanding about the same subject, bringing it appropriate, the collation, the thought of HENRIQUE FERRI, for word:

"... A century of civilization increases in line with the wit and cunning criminals, the point for discovering and accusing no longer enough just common sense, which, however, is not as common as some people think, but being required all the logic, which therefore became a habitual exercise judicial power (...) These crimes are technically designed, technically prepared and technically hidden. Because the most important of these crimes is his subsequent concealment, not just to avoid prosecution, which is the concern of all criminals, but more importantly to ensure the enjoyment of the proceeds of crime ... " (Address of accusation, p. 167/168 - highlighted).
Mittermaier, in turn, in the Treaty of proof in Criminal Matters, p. 24, questioning the understanding of CARRARA as well as I did HUNGARY, said:
"... The essential thing as certainty required in criminal matters can not foreclose on scientific or legal rules, but lies in the intimate and innate sense that guides man in the important acts of life (...) is a mistake to believe that material evidence is the only source of certainty (...) the criminal sentence is not the result of arithmetic ... " (Highlighted).

In http://www.desaparecidospoliticos.org.br/noticias/nt_desarquivando7.html can read an article entitled "The true republican" Fabio K. Comparato, where, in respect of crimes against humanity is written:
Our military decided, therefore, recourse to this stratagem: the killings continue to be practiced, but would be given to the complete vanishing corpses. In the early 90s of last century, international bodies have decided, after all, to tackle the problem. A Resolution of the UN General Assembly, dated 18/12/92, as well as the Vienna Declaration and Programme of Action adopted at the World Conference on Human Rights 1993, condemned for the first time, the practice of forced disappearances, qualifying them as a disguised form of homicide. Finally, the Statute of the International Criminal Court in 1998 defined this act as a crime against humanity (Article 7, point /).
And http://www.edmarger.com/article_CorpusDelicti.htm there is a reference to the Supreme Court of the State of Indiana (USA) whose statement of principles can be drawn that it does not take a body to establish the crime of murder when there is evidence of a death and further evidence that allows the inference that death was the result of criminal prosecution of anyone. These facts can be proved only by circumstantial evidence. And there also are given a decision by a California court where he wrote that the fact that the killer could have the victim's body with no success enables him to an acquittal, this is a form of success that society does not reward.
Among us, only we found the following reference Luis Osorio, Notes to the Criminal Code, III, p. 58, on crimes where the victim's death is typical element: "Death is an essential element in any crime accomplished. In some cases there may presumption of death - vid. arts. 332. And 344 º., § 2. No '. However, the crimes set out in these Articles of C. Criminal, 1886 refer to the false imprisonment and hiding under 7 years when the offender does not show "where there is" the prisoner or the smallest, so that death is not a typical element, but the presumption is an aggravating factor.

IV_B
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. In fact, the impossibility to perform direct examination would make away with some very serious acts, whether sponsored by high crime, either by common criminal who, by skill or luck occasionally, got rid of all traces of their heinous acts.
Clearly 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.
The miscarriage of justice can ever come to be corrected, because the law provides for the existence of a process of review of final judgment, which occurs, for example, at the discovery of new evidence. But repairing the harm it may be late and totally unsatisfactory.
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 anyone for the crime of violation just because it was not possible to examine the direct victim.
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 death 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 no legal rule that imposes, shall be admitted other evidence indicating that "moral certainty about the occurrence of the event" (UU). So there will be an increased demand on the evaluation of evidence.

IV_C
In this case, a witness saw the smallest CC return home, and already very close to the time fixed for the crime, the defendant later informed the police authorities never explained the disappearance of the minor; blood traces appeared on the floor, the walls, bucket and mop, the soles of some shoes that were in the room and inside a drawer of the freezer, the defendant AA collaborated in a reconstitution of the facts in which he indicated he died as a child; also collaborated on another rendering reconstruction of the lower and repeatedly referred to the PJ where the body could be found, beyond the testimony of those who heard the defendants say that they killed (or the AA eventually kill) the lowest. These traces, 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), demonstrate that the room of the house where lived the DC and where it was headed 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 mop up found in the stem, revealing that those who had used the mop turn their hands stained with blood.
All evidence points to the occurrence of death and the lowest CC is incompatible with any plausible factual hypothesis, that nobody, not even the defendants tried to conceive. In fact, how to explain the profusion of human blood traces at the home of CC, even within a rear drawer freezer, and while his disappearance?
Therefore, compared to what has been explained on the subject, not the fact that it was not possible the direct examination of the corpse to prevent the conviction of a crime in which the typical result is the death of the victim or crime that has the assumption that death.
It remains to note that neither the applicants themselves, the findings of its resources, hypothesise DC not be dead.
What seems significant.

V

APPEAL of the defendant BB:

V_A
As one reads the judgment, "" 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. "
Moreover, shall we say, that both defendants used the right to silence and can not be valued for their statements in the investigation.
The proof of the murder resulted, therefore, the assessment that the Court of Jury made on a set of evidence, according to the principle of free evaluation of evidence, which postulates that "unless the law provides otherwise, the proof is appreciated according to the rules of free conviction and experience of authority "(Art. 127. °).
A free evaluation of evidence basically means an absence of legal criteria that predeterminem hierarquizem or the value of various types of proof (see Figueiredo Dias, "Criminal Procedural Law, I vol., 1974, p. 202 et seq.).
A free evaluation of evidence may involve, of course, a great deal of subjectivity, it is impossible to disconnect the judge's personal experience, their culture, their ideas of life, their morals, etc..
Therefore, such a "principle can not in any way want to point to an appreciation imotivável and uncontrollable - and therefore arbitrary - the evidence produced" (op. cit.)
The discretion with which the judge assesses the evidence can not be confused with arbitrariness. Therefore, "the assessment-to be there, in particular, recondutível objective criteria and, therefore, in general likely to motivation and control ... The truth" stuff "that is sought in criminal proceedings is not absolute knowledge or apprehension an event that everyone knows to escape the human capacity for knowledge, especially as here involved, inevitably, numerous sources of possible error, either because it is knowledge of past events, or because the judge will most often to resort of evidence that, by its nature - and that's what happens especially with the testimony ... - Prove to be particularly unreliable "(ibid.).
Given this principle of free assessment of evidence, "one of the primatial functions of the entire sentence (maxim of criminal law) is to convince stakeholders of the soundness of the decision ... The considerations give requirement that judicial evidence are always motiváveis ​​"(ibid.).
So the art. No. 97 requires that all decision-making, - sentences, orders and judgments - are always grounded. And such reasoning must focus not only on the aspects of interpretation of the law, as was traditional, but also on the decision of the facts, for the reasons already mentioned.
Indeed, art. 374, no. 2, provides for the drafting of the judgment that "the report follows the reasoning given in its enumeration of the facts proven and unproven, as well as an exhibition, both can complete albeit brief, of the reasons in fact and law underlying the decision, with details and critical examination of the evidence that served to form the conviction of the court. "
This critical examination of the evidence has been thoroughly done by the court appeal.
Ask yourself, now, this Supreme Court that, on appeal the decision, review the facts, within the limits of their powers of cognition.
Remember that this is a direct appeal of the final decision of the Jury in the Supreme Court that, as we know, is a court of review, the only known point of law, and whose cognitive powers, therefore, escapes the inquest of matter of fact, with the exception of that resulting from the exact context of Article 410., no. 2 of the Code of Criminal Procedure that is on whether the text of the judgment to bear some of the vices that here alluded to, in come to be called, therefore, extended magazine - art. 432 paragraphs. thereof, c), and 434. º.
Indeed, the art. No. 432. Thereof, al. c) determines that there is a direct appeal to the Supreme Court "of final judgments rendered by the grand jury." But the art. No. 434. Stipulates that an appeal to the Supreme Court's review is confined to matters of law, "without prejudice to art. º 410, n. 2 and 3."
In turn, the latter have rules that:
2 - Even in cases where the law restricts the cognition of the appellate court of law, an appeal may lie as the foundation, provided that addiction results from the text of the contested decision, either alone or in conjunction with the rules of common experience :
a) failure to decide the facts proved;
b) the reasons or the insurmountable contradiction between the reasoning and decision;
c) Error apparent on examination of evidence.
3 - The appeal may also be based, even if the law restricts the cognition of the appellate court of law, breach of condition cominado under penalty of nullity that should not be considered cured.
Outside the scope of this article. No. 410., No. 2 and 3, the appeal of the final judgment of the court of jury can have no other basis as to the facts, because the law does not allow the challenge of the facts by the review of evidence adduced at the hearing that could impose any decision different from the defendant.
Thus, unlike 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. "
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.
Recall that in Anglo-Saxon no appeal of the facts when the trial is carried out with the jury. The defense guarantees come from the choice of judges and the commitment of society that is represented here by them. On our right is not exactly so, but by restricting the right of appeal in matters of fact, the legislature intended to honor the work of the Jury, without affecting in any inadmissible way the constitutional rights of defense.
Hence, although the law requires that the statements made orally at the hearing must be documented in the minutes [when the court can have the means estenotípicos, or shorthand, or other suitable technical means to ensure the full reproduction of those, as well as in cases that the law expressly imposes (Art. 363.)] in the absence of such documentation, in cases where no hearing before the court of jury, is a mere procedural irregularity does not affect the rights of defense, because you are not allowed challenge the facts proved and not proved by a confrontation documentation.
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 it was committed or not committed any void judgment, but their lack not "the Accused denies the constitutional right to appeal against that - art. ° -1 ° 32 of the CRP," nor determines the repetition of the trial as claimed by the applicant in completing the 7th of its appeal because the appeal of the facts is no more in the case of trial by jury by review of documentation.
The irregularity of the lack of documentation in the minutes of the statements made at trial should have been raised in the act, and having not been, nor constitute any reduction of rights of defense, it is considered cured (Art. 123. °).

V_B
Will suffer, then, the contested decision of some of the vices to which it relates to art. No. 410., No. 2, as is contended by the applicant?
The applicant's conviction of murdering BB did not result from direct evidence, as stated above.
So it relied on the court for jury to establish the crucial fact of murder, which is contained in al. ab) of the facts observed: at some point, 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, visible to bleeding from the mouth, nose and temple, thanks to the wall of conflicts, which also caused the collapse of the minor and his death, then stopping the activity of the defendants?
To this question the judgment said: "The matter considered to be established in paragraphs aa) ab) c) d) e) f) g) h) i) j) al), am ), an), 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 reconstitution and case of search and seizure, and the subsequent expert testimony, all interpreted in the light of the rules of experience. "
Now, the reconstructions made by AA co-accused have an important void in regard to the applicant, if unaccompanied by other evidence in support of the sharing of it, as already mentioned and explained before (III_C).
Is there such corroboration?
The records search and seizure and the subsequent forensic evidence, only serve to confirm, albeit indirectly (as already clarified in Section IV), the death of CC, but not the applicant's share in a possible homicide, as concern if the blood traces and organic that, despite the dedicated efforts of many, PJ, no avail as to authorship.
And those witnesses, according to the reasoning of the judgment, the most important thing they said was the following:
- The witness AA3, 30 m by 8 h / 8 h 40 m saw CC go towards home with a shopping bag;
- Inspectors CC3 and CC4 were present in the reconstitution of the facts and described the acts of the defendant in this AA diligence;
- Witnesses DD, PJ inspector, and CC8 (coroner) were present in the reconstitution of dismemberment and confirmed how the defendant then proceeded;
- II the witness stated that the defendant told him that BB "had given a slap on the CC and AA just to kill";
- DD1 witness said 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 MM BB confirmed that the defendant was at home at around 21 h 30 m / 22 he said he was unaware of the CC;
- The witness said that the BB BB1 you mentioned how 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
This is essentially the testimony relevant to form the conviction or the court confirmed the reconstructions made by co-defendant or AA contributed a testimony "hearsay" since the testimony of AA3 and BB1 have some importance in concerning the death of CC and the knowledge that the applicant must have had it, but not as to its possible reimbursement in the violence that preceded it.
The statements that confirm what happened in the reconstitution only validate what has happened in this investigation, but did not confirm any reimbursement by the applicant in the production of the death of DC.
The testimony of hearsay are valid concerns that the judgment and are subject to discretion by the court, but its value is always small and indirect, for more when we know that the two witnesses who heard the defendants now decide on the death of CC were, in turn, made defendants in the case. Thus, the hearsay testimony to be insufficient to support the reconstitution of the co-accused in relation to any appellant's share in the death of his daughter.
The judgment further asserts that "In addition to the case of restoration and the 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. "
However, this evidence, combined with the rest, strong enough to hold that the appellant was at home when their daughter died as a result of attacks made by the co-accused and he did everything possible to erase the traces of death, helping his brother to cut up the corpse and then hide it.
In fact, she was at home, as the participation confirms that he made to the disappearance of Portimão GNR DC (pages 18).
It is also undisputed that his brother assaulted the child, as he himself put in the position of aggressor during the reconstitution who voluntarily subjected, and that because of these attacks came from the lowest to die, because human blood traces remained in the house and objects (bucket, mop, tennis) that the applicant tried to clean it with cleaning products, while his brother went to the coffee to prevent the applicant's partner and DD1 as they returned home early.
As is confirmed that there was quartered in the lower house of the applicant, because the co-defendant admitted the act contained in rebuilding the file and there is human blood traces on the inside of the drawers of a freezer, where the body, already broken up and placed in plastic bags was temporarily hidden.
Thus, logic and reasons which relate to the criteria of common experience, lead us to confirm, as did the court of jury, that the applicant cooperated with the dismemberment and concealment of the body, especially since such acts could not be taken out only by an activity of the co-defendant, being forced to cooperate actively, as the only adult in the house that accompanied his brother in height.
But the reconstruction of the crime of murder is not corroborated by other evidence as to whether the appellant also assaulting his daughter, because there is no confession or eyewitnesses, only by hearsay testimony of a witness with an interest in the outcome of the dispute (defendant was made in the proceedings) whom the applicant will be told that "gave a slap in the CC and then the brother just to kill", as your co-accused are not sufficient to incriminate by these facts (death of daughter .)
All in all, there is the actual reading of the contested decision (facts and the reasons) that the court of jury appreciated the reconstitution of the facts, in which only helped the AA co-defendant and not the applicant, as being sufficient to implicate the latter co-authored by the aggression suffered by the smallest DC, which resulted in her death, although there is no corroborating evidence only this version.
And the absence of corroboration of evidence comes from people who co-accused is not sufficient for conviction, for various reasons already mentioned above.
That is, faced with two possible hypotheses in the setting of established facts, or because the defendant participated with his brother in the attacks which resulted in the death of the CC, or merely to attend his brother's assault on minor, the court decided, in his conviction for the first, backed in the reconstruction of the crime that only the defendant participated.
Besides the right to a fair trial ("a fair trial"), ordering the defendant could only be "beyond a reasonable doubt."
By choosing an evidence of dubious value, the court violated the Jury, on this point, "in dubio pro reo," because it valorou at the expense of the applicant.
We are in the presence of an apparent error of assessment of the evidence on this point (Art. 410., No. 2-c), because there is an obvious discrepancy between the established facts of ab), e), aah) ai) and aaj) and the grounds.

V_C
In principle, the occurrence of one of the vices to which it relates to art. No. 410., No. 2, requires the court process for a new trial, for judgment on the entire case or on points of fact specifically identified.
However, the court should only be ordered if "it is not possible to decide the case" (see art. 426., No. 1).
It is not the case because the Supreme Court is empowered by the elements of the contested decision itself, to remedy the error detected remarkable because just purge the intervention of those facts raised BB.
And so, the facts proved ab), e), aah), ai) and aal) will appear with the following:
b) at some point, the two defendants being present, for reasons not specifically determined, the defendant began to AA successive blows to the head of the lower CC, leading her to hit her head on the corner of the wall is visible that bled, the mouth, nose and temple, thanks to the wall of conflicts, which also caused the collapse of the minor and his death, then ceasing their activity;

e) thus decided that would soon cause the house would not be verified the existence of any signals that AA had just practice, the body was never found lower and, preferably, be created in the conviction all that would have been less taken by third parties;

aah) the defendants were able to disrupt the activities of research and prevented the location of the remains of the lower CC, whom AA had withdrawn life;

aai) activities described above were carried out by the defendants in concerted efforts and intentions, except that such ab) that was only practiced by the AA, intentionally, freely and consciously, knowing well those behaviors are punished by law ;

aal) not hindering such the fact that the smallest being the niece of the defendant, the same shall be defended and not the victim;


In fact aaj) will also withdraw the applicant's participation, but will be subject to further review when deciding the appeal the appellant AA. Only then will give the final wording.
Will added a new fact is not proved as follows: (not proved that) 'the defendant has given BB knocks on your daughter CC during the established facts of the ab)'

V_D
In short, given the principle "in dubio pro reo", the applicant will be acquitted of the crime of murder it was alleged.
As for the crime of concealment of a corpse, pp by art. 254., No. 1, al. a) the C Criminal, the proven facts integrate all objective and subjective elements, giving reproduced here by the considerations in the 1st instance.
The penalty to be applied in a first instance of this crime (21 months in prison) will be reconsidered when we decide the appeal of the prosecutor, who asked for an aggravation.
As to the practice of any crime of personal favoritism [a concealment of a body aimed to prevent the reaction against his criminal brother (point mc) of the facts)] is not the same offense, because the applicant acted in favor of relative second degree (Art. 367., no. 5-b, CP).
Terms under which the main action of the defendant BB deserves partial success.
VI
Application from the accused AA:

VI_A
Nullity of the judgment:
The applicant relies nullity of the judgment that we will travel quickly, because it expresses its lack of reason.
He says that 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 resting for more than 80 hours.
The truth, however, that "physical and psychological" is not documented in the file (or course ever was). But more importantly, the defender of the appellant was present at the time and did not raise the issue, which removes any doubt about the voluntariness of the conduct of the applicant, who freely want to work then, but now, the discovery of truth.
Unfounded the alleged invalidity. And as to the probative value of the reconstructions in which the defendant cooperated, everything has been said in section III_A.
Does the applicant, too, "the document fls. 1885 is attached and an integral part of an official interrogation of the accused based on the investigation - fls. In 1878 - before a criminal police body, in which the witness DD was inquisitive, but by virtue of paragraph. 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 use to whom you have collected, which is the legal consequence incurable invalid, that can never be validated as proof or valued as such for purposes of conviction, what is happening. "
However, the hearing was considered the document fls. 1885 and not the statements of the accused based on the investigation, during which the document will be developed (a drawing).
Also unfounded is alleged invalidity.
Invokes the applicant to give up on evidence that the fact referred to in subparagraph a) (defendants are brothers), the judgment is completely silent on the evidence that formed the basis for training the conviction of the Court, in complete breach of the duty to state reasons imposed in art. 374 paragraphs., no. 2, and 379., paragraph a) of the CPP.
However, the identification of the accused before the court at the trial, in which they were required to answer truthfully say they have the same parents. The evidence, therefore, results from their own statements, and therefore the court did not have to justify what they themselves admit.
Also there is no such nullity.
The applicant also claims that there is a conviction for acts other than those described in the indictment, which under subparagraph b), no. 1, Art. 379 of the CPP leads to the nullity of the decision here under challenge.
But not just any change in the facts of the indictment for the alleged invalidity occurs because many of the facts described in the indictment that generate nullity of the decision are only those that are 'out of the cases and conditions provided for in Article 358. And 359 º . No '. However, these standards relate to the conditions in which the court can make a substantial change or not substantial facts of the complaint and report on facts "with emphasis on the decision in question '(non-substantial change - art. 358. thereof) or which have the effect of charging the accused of a crime different or the aggravation of the maximum penalties (substantial change - art. 1. °-f).
And what are these various facts in the present case?
The appellant says that section 87 of the pronunciation - "Forgetting to keep the shoes in the bags that had the smallest shoes, so all your pairs of shoes left in the house," is different from that shown on the point): "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." Yet we see that relief has the conviction to the slight change wrought as this, being a restriction on the pronunciation, is favorable to the defense of the accused [given the pronunciation, the lowest when "disappeared" in the version of the defendants would going barefoot - all the shoes were in the house - but the facts proved at trial, could be paved with shoes that had not used this summer].
The applicant also says that the same applies to the 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." This change, however, is very favorable to the defendants because the evidence raised in the proceedings that resulted was attributed to the defendant admitted that BB, when he gave a television interview, was "mourning", when, who reportedly wore a black shirt and pants incarnated.
Said finally, the same applies 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. But if so, it was the applicant's burden to explain that these differences are "with emphasis on the decision of the case" because it does not expect the Supreme Court make a demand that only he, appellant, and that it was up to investigate he extent to which the defense was affected.

Moreover, it is unthinkable that the trial court was bound by the wording of the indictment, in its smallest details, and can not change anything (not even the wording, sometimes faulty or erratic) without prior knowledge of the defendants, because what the aim is to give when you have this knowledge is to ensure the full rights of defense.
Also unfounded is void.
Finally, the applicant states that the contested judgment suffers from insurmountable nullity for lack of evidence indicating that served to form the conviction of the judge. And that is also invalid because it does not contain the list and all facts relevant to the decision of the case, proven and unproven, this time to confirm the charges.
These claims are not properly explained and are clearly unfounded, because the concern is gorgeous appeal that the court had to list all the facts proven and unproven, whether alleged in the indictment, whether the result of the hearing, since the defendants offered the merit the file. In addition it would appear that the reasoning and critical examination of the evidence was detailed and care, much beyond what was required.
Manifestly unfounded these alleged nullity.

VI_B
Noticeable error in the assessment of the evidence?
From what we have said with regard to the resources of the co-defendant BB, it follows that the evidence resulting from the two reconstructions that appellant freely collaborated AA is valid, even if used at trial has the right to silence.
And as valid evidence, could have been freely determined by the court of jury, as it was.
In addition to this evidence by reconstitution of the facts, the other evidence collected has also addressed assist the firm conviction that the appellant AA, for reasons not determined, the lowest CC beat with successive blows to the head, causing it to hit with head on the corner of the wall, which is visible bleeding, mouth, nose and temple, thanks to the wall of conflicts, which also caused the collapse of the minor and his death.
However, we must reflect about the intentionality of the conduct of the applicant.
The judgment (mentioning the two defendants) reads in part as regards the grounds of law, "is clear from the facts established that the defendants, jointly acting on the freely given and not unaware of the punishment of such conduct, gave successive 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 minor and his death, a result that the accused foresaw that resulted from their actions and that it conformed, stopping only when his conduct was less effectively dead. There is no doubt therefore that the defendants committed co-authored a crime of murder, although in any aspect of intent (see paragraph 3 of art. 14 of the Criminal Code). '
However, since the reimbursement is excluded from the defendant on these facts, but remains to be seen what evidence it relied on the court for a trial court to conclude that there was any intent by the applicant.
Recall that it was proven that "at some point, for reasons not specifically determined, the defendant began to AA successive 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 ceasing their activity. "
On these facts we know that AA has shots (with hands) at the head of the CC which led her to hit more than once ("bumps") on the corner of the wall, which, in turn, caused the fall of same and death.
But it is evident that there was a voluntary action of the defendant to attack the lower head (direct intent on bodily harm), it is stated that such action was intentionally directed to the same embatesse at the corner of the wall and it fell on the floor because they have been knocking or the drop that caused the fatal injuries and no beatings to the head. Especially as "leading it to hit" is not the same as "forcing her to hit."
Still, even if the blows to the head have not been given with the intent to shoot the lower corner against the wall, this result was necessary, since the assault occurred inside a house and committed by an adult man against a minor 8 years of age. Therefore, the rules of common experience, as we can dispute that the applicant provided that the lower embatesse head on the wall or the floor and that it could result in injuries that cause death, for the clash head on a hard surface can always cause lesion in a vital organ is the brain.
The question is whether the applicant has complied with this outcome (death), and established the court of jury (that aaj), or trusted that this does not happen, because this point ab) of the facts does not allow any inference about that.
The point aaj) seems to solve this issue by stating (still with reference to the two defendants) "... and knowing that, taking into account the location reached in which the vital body (head) repeatedly and violence, causing the head embatesse lower wall, it could take life result that accepted anyway not cease this activity.)
But these "facts" contained in section aaj) are inconclusive and therefore lacked a foundation that does not exist. It relied on the appeal court to affirm that the applicant accepted that his conduct could take the life of a minor?
The only evidence that we won the court to describe the action that led to the death of the lower DC reconstitution of the crime was carried out on September 25, 2004.
In such a reconstruction does not seem to be any objective or subjective element which would have allowed the court to conclude that the conformation of the defendant with the death event. And if that element exists, the court would have to justify how it arrived.
Neither seems that here should be called the rules of common experience, especially since not found what the motivation of the crime. If it had been proven a strong motivation, as contained in pronunciation (see paragraphs 8 and 9 of the facts not proven), it might be possible to conclude with these rules of common experience for the existence of intent to kill, even by way of deception potential.
Even after cutting and hiding the corpse tell us nothing about the intent to kill because they are known cases where the agent proceeded the same way despite the death was not caused intentionally, just that it is install panic.
Therefore, in the absence of evidence about whether the applicant has complied or not complied with the outcome "death" of lower CC, the court should have opted for the solution most favorable to the defendant, given the principle "in dubio pro reo".
Thus, there is noticeable error in the assessment of evidence (Art. 410., No. 2-c) because the court only with evidence as to intent in relation to conduct initial and the desired event (injury) but not having more serious about the outcome actually occurred (death of the minor), chosen as the final result for this hypothesis more unfavorable to the defendant, in violation of the principle "in dubio pro reo".

VI_C
The reference for a new trial also does not seem necessary, because this Supreme Court has sufficient information to decide.
And in remedying this defect, taking into account only the text of the contested decision and the reasons as to the facts, it establishes the final wording of section aaj) as follows:
'Thus in relation to the death of CC, niece, the suspect and the force used AA took advantage of the same can not defend themselves (given the age and physique) so that, taking into account the location that affected his body, repeatedly and with violence, it was possible that the head of the lower embatesse wall and floor, and thus it would take the life, as actually happened, who predicted this outcome but which did not conform ; '

VI_D
Characterization of the facts against the appellant:
The applicant acted with direct intent to produce bodily harm to the lower DC because you wanted to provoke these offenses (Article 14., No. 1, CP).
But the end result of his act, ie, the death of that, did not act with the care that, according to circumstances, was bound and was able, because admitted as possible that his conduct could result in fatal injuries to and lower, however, did not comply with this result.
"What is shaping? There conformation when the agent takes seriously the possibility of violation of their legal rights and nevertheless decides on implementation of the act, not simply predict the outcome as possible" (Leal-Henriques and Seamus Santos, Criminal Code Annotated, King of Books, 1 vol., p. 232). There will be no conformation if the agent entrusted the completion of the crime would not take place, despite having planned or became indifferent to such production.
Article 15. ° C. Criminal says: "Who acts with negligence for not always make sure that under the circumstances, is bound and which is capable of: a) Represent as possible to perform an act that constitutes a kind of crime but act without complying with this realization; '.
This is called conscious negligence, which shows a very slight difference in relation to the eventual intention (Article 14., No. 3, PC), since this agent that provides for the completion of a criminal as a possible consequence of their conduct and conforms to that realization.
Having the agent acted intentionally in bodily harm to another, but with neglect of the outcome "death", this is the crime of preterintencional bodily harm aggravated by the result, generally referred to in art. 145. º, CP : 'a - who grieve the body or health of another person and were to produce her death is punishable: a) with imprisonment for 1-5 years in the case of Article 143 b) with imprisonment for 3 12 years in the case of Article 144. '
"The preterintenção is a combination of deceit and guilt. Fraud in relation to conduct initial and desired event (injury), blame for the outcome more severe "(Helena Fragoso, Lessons of Criminal Law, Special Part 100).
The Supreme Court has had occasion to dwell on several occasions on this issue, for example, Ac. of 06.15.2000, proc. 154/2000: "1 - The co-authors of the crime of art. Paragraphs 144. And 145., No. 1, al. b) C Criminal defendants who, like corporal punishment, assault a child under 3 years old, son of the defendant, with intent to cause bodily harm likely only to determine the danger to life, but comes to the same result in his death. 2 - In this case, the defendants act with intent to assault and negligence for the death, for although violated a duty of care on them impendia, failed to comply with the risk of resulting death. "

But in the case, since the defendant assaulted the child with successive blows given on the head hard enough to take the hit with this vital part of the body at the corner of the wall and fall to the ground, caused him a danger to life, that we are facing serious offense to physical integrity, as provided in art. No. 144. al. d) C. Criminal.
The offense provided for and punishable by art. 145 paragraphs., No. 1, al. b) and 144. ° C. Criminal, may still be qualified "if the offenses provided for in Articles 143, 144 or 145 are produced in circumstances which reveal special reprehensibility or perversity of the agent, this is punishable with the penalty for the crime accompanying increased by one third in its minimum and maximum "(Art. 146., no. 1). "They are likely to reveal the special agent reprehensibility or perversity, among others, the circumstances described in paragraph 2 of Article 132" (No. 2).

This art. 132. No reports to murder him and the legislature has sought to organize a qualifying circumstances exhaustively before opted for an open formula, though girt to certain parameters, that leaves the investor a margin of weighting circumstances, case by case basis in order to determine whether this or that fact that part of the legal concept of murder.
This is done by the general statement of a special kind of guilt, which is well described in n. 1: "If death is produced in special circumstances which reveal reprehensibility or perversity, the agent is punished with imprisonment from 12 to 25 years. "
But allied to this generic formulation "technique called the standard examples ('Regelbeispieltechnik' (11), in which the general clause would be covered by a sort of guilt (Art. 132., No. 1) combined with an exemplification is not final and optional (Art. 132., no. 2) "(12).

Some examples of such standard, are formulated in n. 2 of art. 132. Paragraph thus: "It is likely to reveal the special reprehensibility or wickedness referred to in the preceding paragraph, among others, the fact that the agent: ) be descending or ascending, adopted or adoptive parent of the victim; b) Practice that particularly defenseless against a person by reason of age, disability, illness or pregnancy; c) employ torture or cruel act to increase the suffering of the victim; d ) be determined by greed, for the pleasure of killing or causing suffering to excitement or satisfaction of the sexual instinct or by any unworthy motive or futile; e) be determined by racial, religious or political; f) take to prepare, facilitate, execute or conceal another crime, facilitate escape or to ensure the impunity of the agent of a crime; g) Practicing with the fact that at least two other people or use a particularly dangerous or which would result in the commission of crime common danger; h) Use poison or any other insidious; i) act with coolness of mind, with reflection on the means employed or have persisted in the intention of killing more than twenty-four hours; ... '.
That these circumstances are listed only for illustration, is an unequivocal affirmation, as a direct result of the law when it states that these are "among others." And, as might be expected, this is the uniform of the Supreme Court Jurisprudence (13).
But the legislative technique resulting from the combination of n. 1 to n. 2 of art. 132. Thereof, leads to a murder that may occur where there is any of the circumstances described in paragraph. 2, yet this is not a murder, because, in this case, that circumstance does not reveal "special reprehensibility or perversity" (No. 1), as can occur otherwise, the condition was not envisaged in paragraph. 2, but may be substantially similar (14), and integrated into the special kind of guilt n. 1. (15)
Has the doctrine understood, although divided (16), the standard examples relate mainly to the fault point, rather than with the illegality, they still referring to a devaluation of the largest conduit (for example, the killing committed in the person's father or son), is not that fact in itself that determines the eligibility of the crime before the special agent reprehensibility or perversity, that is, the special kind of guilt (17).
As they say in this Supreme Court Judgment of 12.11.1996, in proc. no. 188/97 (www.dgsi.pt), "The qualification of the crime of murder is not an irrevocable consequence of the existence of any of the circumstances listed in n. 2 of article 132. of the PC. Essential is that the circumstances in which the agent commits a crime show reprehensibility or special perversity, that is, a distinct reprehensibility or perversity (for its unusual severity) those who, in greater or lesser degree, prove the authorship of a simple murder. "
It should be what is the special reprehensibility or perversity.
We would like to mention here again, Teresa Sierra (op. above, pgs. 63-65).
"As you know, the idea of ​​reprehensibility is the core concept on which is founded normative conception of guilt. Reprehensibility of the fact that guilt is the agent, that is, censorship is the agent was able to be determined according to the norm and not having done so. In the article 132. °, it is a particular reprehensibility: circumstances in which death was caused are so severe that reflect an attitude of deep spaced agent in relation to a determination in accordance with normal values ​​... With special reference to perversity, has in mind an attitude deeply objectionable, in that it has been determined and an indication of motives and feelings that are totally rejected by society. This means therefore an emotional appeal to a conception of guilt and can bring up "the bad attitude, ethically speaking, gross and primitive egotism of the author, who speaks BINDER. So it would be able to characterize an attitude objectionable as that prevailing in the selfish tendencies of the author, especially perverse, especially objectionable, then it is the attitude in which the selfish tendencies gained an almost total dominance and determined almost exclusively to the agent's conduct It should be noted ... that the special qualification has recovered much of the perversity and reprehensibility. The reason for the classification of homicide lies exactly in this special reprehensibility or perversity revealed by the circumstances in which death was caused. Indeed, any homicide, while the legal injury is essential to human life, already shows the perversity of reprehensibility or agent who commits it. "

In the present case there is a special reprehensibility because the applicant has committed serious bodily harm against particularly defenseless person, by reason of age, because it is grown man who hit them, hard and repeatedly, a child in September 2004 , was 8 years old, thin and with a height between 1.20 meters and 1.40 meters.
This huge disparity physical coupled with the fact that Uncle lower, which on the one hand, gave him a special duty to ensure the health and welfare of her niece, on the other hand, gave him an authority on the same family, show a special reprehensibility, a guilt increased that lead us to qualify the crime committed by the applicant as offense A serious, aggravated by the outcome (death) and qualified for revealing special reprehensibility of the agent, provided for and punishable by a combination of art. paragraphs 146. , 145., no. 1, al. b) and 144. al. d) C. Criminal, for which the pronunciation is convola the crime of murder.
This convolação is allowed, since the possibility of coming to Il was reported to occur. Defender of the appellant at the trial held in this Court, that he might organize their defense and in any case where it is much more favorable.

As for the crime of concealment of a corpse, pp by art. 254., No. 1, al. a) the C Criminal integrate all the facts proven their objective and subjective elements, so that the crime imputed to him in real competition with the former, giving reproduced by the considerations in the 1st instance.
The sentencing for the two crimes are fixed at the appeal decision of the prosecution.
VII

APPEAL OF THE PROSECUTOR

The prosecutor appealed the sentencing judgment, understanding that justified an aggravation of punishment for two defendants:
"In fact, as mentioned above, the purpose 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 that show appropriate and is required by the rehabilitation needs of the agent and the intensity of the warning which will prove sufficient to accomplish these goals, the defendants in the case of penalties imposed on them by default sinned.
One is that, given the seriousness of the crimes carried out by the defendants, the lack of any shows of repentance on his part and the conclusions of the expert in the file as to his personality, doubts arise about the possibility of some time to come to integrate normally society ...
But there seems no hope, with the relatively short term of imprisonment that were eventually convicted, such integration in normal life is facilitated see.
It is that, with the penalties imposed on them, you can not - as mentioned above - meet the requirements of special prevention that appear necessary for the case.
Do not forget that although it has been described as having acted with intent in the death of any child, this is the only element "mitigating" which is the conduct of the defendants (in addition to some collaboration with the police in the case of defendant AA). All other elements are aggravating the guilt of staff or to speak at the time of the crimes, whether in moments later. Just remember that to date have not revealed the whereabouts of the remains of the lower DC ...
"Benefit" defendants with feathers located near the midpoint between the minimum and maximum penalty for the crime of murder seems to us unfair and violates the rules that determine the choice of sentence.
Even if the crime of concealment of a body there is no reason not to apply to the defendants the maximum penalty provided in the abstract. For when - as it came to be understood - in this crime ended up consuming one another, the desecration of a corpse. Activity desvaliosa more legally and is not social. Can not see any case where you can get more illegality and fault of the agent in the concealment of a body (for more than one daughter and niece of the accused).
Hence, always saved due respect for the contrary opinion, to understand that the penalties to be imposed should be increased.
It is further understood that should the defendants be punished in the same way, taking into account that on the one hand, the devaluation of the action of the defendant BB is higher (lower was his daughter, and hence also the qualifying d a) of paragraph 2 of art. 132 ° C. Criminal apply to you) but which, in turn, accused the AA, unlike the sister (primary) already have several previous convictions, one specifically for a crime against life.
Thus, it is proposed to change the decision as follows:
- The defendant AA in 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 ° n. Paragraphs. 1 and 2, al. b) and
- 2 years in prison for a crime of concealment of a corpse, p. and p. by Art. 254., no. 1, al. a), both the Penal Code.
- The BB raised in 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, als. a) and b), and
- 2 years in prison for a crime of concealment of a corpse, p. and p. by Art. 254, no. 1, al. a), both the Penal Code. "

The feature of M. No. Q. No, however, is already partly compromised.
Indeed, as the BB raised the same will be absolved of the crime of murder for which he was convicted. As to defendant AA, it also will not be convicted of this crime, but by another whose criminal abstract frame is lower.
The outcome of the appeal of M. P. º º will only occur on the individual sentence for the crime of concealment of a corpse, applied to defendant BB.
In fact, the wrongfulness of the crime here is maximum, since there was only blind, but desecration of a corpse, particularly in terms repugnant, since the body was cut up, stuck in a freezer drawers in the house where they were all at the moment to inhabit, defendants and victims, defendants and then got rid of those remains in a way that still remains unknown. As one reads the judgment, "by mutual agreement and joint efforts, showing total coldness and insensitivity towards the under 8 years old who had just killed, daughter of the defendant to endow a knife and a saw and a esquartejam smaller pieces of the body leading to an unknown location and that it has not been possible to determine what it is. The action is how committed this crime of concealment, it is especially so desvaliosa. As the result of the action of a mother to say that after killing his daughter he still denies the possibility of a funeral? There are no words to describe the worthlessness of the result. "
The guilt of the defendant is also maximum, because he acted intentionally very intense, with the sole purpose of trying to avoid criminal prosecution against his brother and against itself (what happened yet). Do not confessed to the facts, is not sorry and does not constitute mitigating the lack of criminal record, has not been proven that good behavior and, conversely, the forensic expertise to your personality points to the existence of a strong need for special prevention ( "the defendant expresses BB socially deviant behavior 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 the satisfaction their 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, and weak capacity to feel remorse. has borderline personality traits with anti-sociais/psicopáticos, narcissistic and schizoid ").
In a criminal abstract frame up to 2 years imprisonment or a fine not exceeding 240 days, the defendant should be sentenced in BB maximum sentence of two years.
Faced with a prison sentence of less than three years, is required to give reasons why not suspend its execution.
The art. º 50, n. 1, of the Criminal Code:
"The court suspended the sentence of imprisonment imposed to an extent not exceeding 3 years if, given the personality of the agent, the conditions of his life, his conduct before and after the crime and the circumstances of this, the simple conclusion that censorship the fact that the threat of imprisonment perform adequately and sufficient for the purposes of punishment. "
This provision establishes now a power and duty, that is a power bound of the judge, who must order the suspension of the sentence, in the form that it appears more convenient to carry out those purposes, where there are the necessary assumptions (Maia Gonçalves, Criminal Code Annotated, 14th edition, p. 191).
Where there is a related assumptions, the judge has a duty to suspend the sentence: this is a measure of re-education and educational content.
For this purpose it is necessary that the judge, referring to the moment of decision and not to the crime, can make a judgment favorable prognosis as to the conduct of the defendant, in the sense that the threat of penalty is appropriate and sufficient to accomplish the purposes of punishment.
It is not the case that we have at present, because as already explained, the personality of the defendant points to the existence of a strong need for special prevention and therefore can not make a judgment favorable prognosis, nor a censorship that would accomplish in an appropriate and sufficient for the purposes of punishment.
There is, therefore, to suspend the sentence of two years imprisonment and, in this small part, the appeal proceeds M. P. º º.

As to defendant AA, we have to consider who committed two crimes, one of offense A serious, aggravated by the outcome (death) and qualified for revealing special reprehensibility of the agent, provided for and punishable by the conjunction of art. Paragraphs 146., 145 ., no. 1, al. b) and 144. al. d) C. Criminal, which corresponds to the penalty abstract 4-16 years in prison, and a crime of concealment and desecration of a corpse, pp. art. 254., No. 1, als. a) b), which corresponds to an abstract penalty of imprisonment up to two years or a fine not exceeding 240 days.
The wrongfulness of the crime preterintencional is very high, because the action should be considered very close to a murder, which would correspond to a penalty of 12 to 25 years in prison.
The intent was very intense as to bodily harm and gross negligence in the production of income "death."
The accused did not confess the facts at the hearing or showed repentance and personality revealed by the forensic examination indicates that "manifest disregard for human life - the result of social maladjustment and emotional coldness - and has anti-sociais/psicopáticas trends with limited control impulse, 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. "
He adds the judgment:
As qualifications, the defendant AA has the 4th grade and since leaving school started working, but always exerting services undifferentiated and no employment relationship, never having employment or residence right and living lately in the interior of a car, or home his brothers, surviving at the expense of odd jobs, carried out in various locations.
The defendant has already suffered several convictions, was ordered on 10.11.1993, the penalty of four years in prison for a crime as attempted murder, in 1995, was convicted of a crime of robbery, in pen, in height with the sentence imposed for the crime of attempted murder, 3 years and 8 months in prison, in 2001, was sentenced to 90 days of fine for a crime of illegal vehicle driving, and in 2003, again commission of a crime by driving the vehicle illegally, was sentenced to six months and 15 days imprisonment, suspended on probation upon fulfillment of conditions, from the suspension to be revoked.
The defendant was born into a family (parents and nine siblings), which highlighted the alcoholic habits of the father and the economic difficulties.
On behalf of the accused only have voluntary collaboration with the investigation during the investigation that led to it being possible to provide conclusive evidence at trial. However, the fact that the PJ have indicated many false evidence as to the location of the victim's body in any way detract from the value atenuativo that collaboration.
Upon graduation of the penalty should look to the functions of general and specific deterrence of penalties, but without losing sight of the agent's fault.
In a modern conception of the essential and primary application of the penalty is the general prevention, which means "that the penalty should be measured basically according to the need for legal protection of property that is expressed in case-reaching ... achieved through the stabilization of community expectations on the validity of the rule of law infringed ... " (Anabela Miranda Rodrigues, "The Determination of the Measurement of deprivation of liberty," Coimbra Editora, p. 570).
"It is therefore the very concept of general deterrence is that part that justifies talk here of a 'frame' pen. This will certainly have a limit set by the measure of worth that the community considers necessary for the protection of their expectations in validity of legal rules: the maximum sentence. What will be in the same step, the optimum realization of the preventive needs of the community. But below this measure of worth, others will be that the community understands that they are still sufficient to protect their expectations on the validity of the rules - until you consider that the limit is necessary to ensure the protection of these expectations. Here reside the minimum of the penalty which aims to ensure the purpose of general deterrence, defined as, in particular, the absolutely essential to accomplish this purpose of general deterrence and that can be understood in the form of defending the legal order (the same work, p. below).
The special prevention, in turn, is seen as the need for socialization agent, although the effect, modest but realistic, to prepare him for the future does not commit other crimes.
"Having said that, here too, is called to intervene blame to act as insurmountable limit any and all preventive considerations ..." (Still the same work, p. 575). "As punishment for general deterrence as effectively, it must respect the limits of guilt and thus preserve the human dignity of the condemned" (p. 558).
All in all, according to the criteria defined in art. Paragraphs 70. And 71. Of the PC, taking into consideration the enormous unfairness of the facts, the high degree of guilt, the personality of the accused and the strong demands of general prevention of crime, lead to set the penalty for the crime pp. art. paragraphs 146., 145., no. 1, al. b) and 144. al. d) C. Criminal, in 15 years in prison.
As for the crime of concealment and desecration of a corpse, the considerations apply here as we did the co-defendant. But as their collaboration was crucial to establish this crime, even with these limitations, considers appropriate to maintain the penalty for this crime that was set in the appeal court (20 months in prison).
Reapreciando the facts together and the personality of the accused, for the purposes of art. No. 77. ° C. Criminal means to fix the penalty resulting from the accumulation of penalties only those partial sentences in 16 years in prison.
In regard to the defendant AA, the appeal of M. P. º º completely unfounded.

In this case with gravity, in which there is circumstantial evidence directly and only even with regard to the death of the victim, the court has to limit the true procedure, ie the resulting value of law and order means of evidence because the search for any "truth" can lead to a serious and irreparable miscarriage of justice.
Dissenting opinion of
A) Joseph Vaz Carvalho Santos
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(1) This process, by expiration of the original rapporteur, Cons. Carvalho Santos, came to fit to this reporter who was first. No deputy. It should, however, specify that as much as possible, kept the text of former rapporteur, changing the same on the essential parts that focused on the disagreement. These changes were mainly from the point 11. 3. on, taking advantage, however, certain parts of the text of the original reporter to not collide with the views adopted.
(2) In the original version was written there "when the child was about 3 years old," but this reference was deleted after the rectification of fls. 3669.
(3) Why is there a rejected it, in violation, moreover, Article 158 of the Code of Criminal Procedure, that occurred the famous miscarriage of justice Araguari, which resulted in the conviction of the brothers for the alleged murder of Spacecraft Benedito Pereira Caetano, that years later he returned, alive and well, of Bolivia, where he had moved, taking money subtracted from their parents. The confession of the accused had been extorted by the violence of a military delegation.

(4) Degree to which we will report when another is not mentioned.
(5) "With the means to corroborate the existence of evidentiary items from sources other than the statement that, although not to report directly to the same facts narrated in the statement, allow us to conclude the truth of this" (António Alberto Medina Seiça, The Knowledge Probation Co-Defendant, Coimbra Editora, 1999, p. 228)
(6) "The absence of an express provision to command the requirement of corroboration and cominar you the result of the inspection in concrete decision, prevents us, of course, to affirm the existence of a ban on evidence in the valuation of knowledge co- defendant who does not show corroborated. However, we think that the lack of corroboration deserves censure, while another plan. If (...) the rule of corroboration translates, essentially, a requirement for increased motivation of the sentence, it is shown that motivation enough express the reasons why the court did not consider one source of evidence undeserving of credit (the first stage of evaluation) , or even the reasons why it considered credible (the second stage of evaluation). It is also necessary that the motivation contains explicit elements of corroboration found by the court to sustain the credibility of the statement (the third stage of evaluation). Consider all means to motivate properly, the corroboration is an element of assessment and therefore the motivation: their absence reflects a failure of reasoning, which failed to reach the standard of persuasion that all the reasons, as a discourse justifying the decision, intended "(op. cit., p. 227).
(7) For unattended there is to it, in violation, moreover, Article 158 of the Code of Criminal Procedure, that occurred the famous miscarriage of justice Araguari, which resulted in the conviction of the brothers for the alleged murder of Spacecraft Benedito Pereira Caetano, that years later he returned, alive and well, of Bolivia, where he had moved, taking money subtracted from their parents. The confession of the accused had been extorted by the violence of a military delegation.

( op. cit., P. 18.
(9) J. Irureta Goyena, El crime of murder, 1928, p. 8.

(10) Carrara, Programma, cit., § 1088, note 5.
(11) "Technique of the examples of the rule."
(2) "Qualified Manslaughter - Type of Measure of Guilt and Penalty," Teresa Serra, 2000, p. 15.

(13) Acs. Supreme Court of 14.11.2002, proc. 3316/02 of 12.12.1991, proc. 42 640 of 5.6.1992, Proc. n. No. 43 109 of 12.16.1997, Proc. no. 102/98 of 12.20.1990, proc. 41 848, etc.., All in www. dgsi.pt.
(14) "Comment Coimbra ...", op. cit. p. 26.
(15) Teresa Serra, ob. cit, pp. 67 et seq. In the wake of Wessels, means the first case of atypical simple murder and second degree murder by atypical.
(16) "Comment Coimbra ...", op. cit., p. 27.
(17) and Seamus Henriques Leal Santos mark in the "Criminal Code Annotated," II, p. 61 et seq., Which is not a precise statement of the Ac. 06.06.1990 of the Supreme Court that "in the case of parricide is the rule that there is special reprehensibility or perversity" because it must always be proven.
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translation completed.

Thanks, Pedro, that is a mammoth bit of posting, but it makes it easier to have it all in one place now

It all needs to be read carefully, and not rushed.

I am actually trying to spot any actual evidence in it, and failing so far. Red trousers worn with black blouses do not normally count as evidence...

crazytony wrote:

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?

Would that be the same ones he was making racist remarks about, Tony?

You welcome bb1, I agree with you.

I am reading, and rereading it, Pedro. I am trying to find something that says, beyond all reasonable doubt, that Leonor Cipriano killed her daughter and butchered her body.

I can't find anything, just a lot of, It is believed, cod psychology about red trousers and black blouses, and photographs of saws that might be something like the saw used in all the supposed butchery.

If that case had been put on a US prosecutor's desk, it would have been thrown in the bin - by the prosecutor.

bb1, inside the text above, no evidence at all about amaral´s unproven theory regarding Leonor Cipriano.

having read this, and other material, it is strange. Unless there is information that was disclosed to the court and not released, I cannot see that this conviction could be regarded as safe. Especiallly bearing in mind the mehtods used in obtaining confessions.

Clearly some tragedy has occured. And two not very well educated members of the family make a tempting solution for the police. Very sad.

Thanks, Pedro. I have actually read a large part of that, and never in all my life have I read such utter rubbish. But I did give up when I realised that The Judge who wrote that was just trying to justify a terribly flawed decision. And what the hell he thought The Jury had to do with this decision leaves me stunned since he actually said that they weren't able to understand the Legal Implications of No Body. So I expect that this bunch of Peasants just took his word for the fact that No Body was irrelevant.
And nor was he able to understand, it seems, since he quoted some other Case that was heard some forty years previously. No doubt presented by another set of corrupt PJ Officers. The fact that this occurred before The Glorious Revolution seems to have entirely escaped him.

Incidentally, was there any mention of The Judge who didn't agree? Or was he just another Peasant who didn't understand? I did look for it but failed to find it.

Jean-Pierre.t50 wrote:having read this, and other material, it is strange. Unless there is information that was disclosed to the court and not released, I cannot see that this conviction could be regarded as safe. Especiallly bearing in mind the mehtods used in obtaining confessions.

Clearly some tragedy has occured. And two not very well educated members of the family make a tempting solution for the police. Very sad.

It's a bit more than sad, Jean Pierre. The lives of those two defendants have been ruined, and on the say so of a corrupt Policeman. But probably more to the point, Two Judges agreed with this travesty.
But then I have spent some time pursuing this. There always was more to it than just Madeleine.

Remember Claudia announcing a while back that she didn't approve of the jury system, as members of the public were too stupid to understand the law? It was much better to leave it to judges? It didn't seem to matter to her that this means leaving the law to political appointees.

No, I can't find out anything about what the dissenting judge said, either.

And I don't know how the convictions can be regarded as safe, as the only evidence against the accused - apart from their choice of clothing - was obtained under duress.

Actually, I don't see how any court can regard the colour of clothes as 'evidence' and expect any kind of respect whatsoever.

You welcome bb1, utter rubbish indeed.

One of the reasons why many criminal lawyers strongly oppose the introduction of bench trials in criminal cases. Sure they are a bit cheaper - and I can just about see some point in very complex fraud cases - but juries have a long record of "failing safe".

There have been more than enough gross miscarriages of justice WITH the jury system, without handing the law over to political appointees with their own agendas, IMO.

From what we know of it, I cannot see the case against the Ciprianos even coming to court in, say, the US or UK. Mainly because there isn't one, apart from self-incrimination obtained by torture.

Or the fact that Leonor Cipriano spoke in the past tense about Joana. That is the tense in which the questions were put to her. Probably deliberately.

You actually have to read most of this rubbish very carefully before you are able to separate Fact from Innuendo. And even the bloody Judges were at it.
This whole thing beggars belief. And why? Why did they do this? You can't just blame Amaral. He didn't accomplish this all by himself.
I am so incensed that I don't know what to do. But there must be something.

Jean-Pierre.t50 wrote:One of the reasons why many criminal lawyers strongly oppose the introduction of bench trials in criminal cases. Sure they are a bit cheaper - and I can just about see some point in very complex fraud cases - but juries have a long record of "failing safe".

Well, The Jury Acquitted Casey Anthony. And I should jolly well think so too.

I just don't know what to make of it, Sabot, whether it is sheer laziness, or something worse.

And Madeleine McCann is abducted at almost the same time as Gonc is being made an arguido because of his conduct in another missing child case? What are the odds - and isn't it strange how he 'forgets' to mention this small detail in his potboiler?

I really don't know what to think any more.

Well, The Jury Acquitted Casey Anthony. And I should jolly well think so too.

Look how many of the forkers ignored the small detail of it being a good idea to have evidence, when you put someone on trial for her life.

I personally think Ms Anthony is lucky not to be in jail for the rest of her life; I suspect that, if the prosecutor had laid a lesser, proveable charge, instead of playing to the gallery as he did, she would have been found guilty and jailed. Which I also think would have been richly deserved.

But that is what happens when you have showboating law officers.

No one fits up and convicts someone on shit evidence because they can't be bothered to do a proper job, Bonny. There has to be more to it. And agreeing that a child was Abducted would be infinitely easier, surely. After two days the child is long gone, and any Police Force could be forgiven for not being able to track the child, especially if closing Borders is a bit boring.

But it is all going to come out in the end.