Supreme Court of Justice - 'Joana case' ruling

Part I
http://joana-morais.blogspot.com/2009/07/supreme-court-of-justice-joana-case.html

Part II
http://joana-morais.blogspot.com/2009/07/supreme-court-of-justice-joana-case_13.html

Part III

http://joana-morais.blogspot.com/2009/07/supreme-court-of-justice-joana-case_5147.html

Today, we start the publication of parts of the Supreme Court's ruling that reviewed the trial of Leonor and João Cipriano, condemning them to 16 years in prison over the death of Joana Isabel Cipriano Guerreiro.

These are, according to the initial trial, the facts that were proved in court, and those that were not:


"II. FUNDAMENTATION

9. Matter of fact according to the appealed court

9. 1. Facts considered to be proved:

a) the arguidos are siblings;

b) the arguido AA [João Cipriano] has never held a regular job or residence, living inside a vehicle or at his siblings’ house, surviving on occasional jobs that he performed on diverse locations;

c) the arguido AA manifests despise for human life – a result of a poor social adjustment and affective coldness – and has anti-social/psychopathic tendencies with a difficulty to control his impulses, which leads him to be aggressive, trying to solve conflicts through said aggressiveness, feeling no remorse for the consequences of the actions that he thus performs, despising other people’s rights, wishes or feelings;

d) through a ruling that has been validated in court, and given on 10.11.1993, arguido AA was condemned to a 4-year prison sentence over the practice, on 2.10.1992, of a crime of attempted homicide, (…). Said ruling includes that the arguido was convinced, by a third party that lived with one of the arguido’s sisters (GG) to take the life of another person who had left him blind, in exchange for 20.000$00 and a motorbike (…);

e) the arguida BB [Leonor Cipriano] manifests socially deviant behaviour at the level of norms, values and responsibilities, emotional instability and difficulties in expressing frustration, while her socialisation was marked by immature, superficial and narcissistic interpersonal relationships, where characteristics of manipulation (to satisfy her own needs) and aggressiveness (of mainly sadistic tonality) are stand out, while in her personality the absence of empathy and the insensibility are salient, leading to the arguida’s despise for other people’s rights, needs and sentiments, directing her aggressiveness towards them, with a weak capacity to feel remorse. She possesses a borderline personality with anti-social/psychopathic, narcissistic and schizoid traits;

f) the arguida BB, who has six children from five relationships, has been showing some lack of interest in her elder children, throughout her life;

g) concerning her eldest daughter, EE, who presently lives with her father and grandmother in Olhão, she left her there at the age of 11 months, never cared for her again, and didn’t ask about her, for 14 years;

h) her second child, FF, who lived with his paternal grandmother and presently lives with a paternal aunt, in Messines, was also left by her to the father, and she never cared for him again;

i) the fourth child, HH, who presently lives with his father in Porches, was left home alone by the arguido BB at the age of 7 months, buckled to his chair, which is how he was found by neighbours who perceived the situation;

j) at that time, arguida BB started living with II [Leandro Silva], a relationship that produced two children, JJ and KK;

l) the third child that she bore was CC [Joana], who was born on 31.05.1996, a daughter of LL;

m) minor CC, in September 2004, was aged eight, being thin and measuring between 1,20 and 1,40 metres; (2)

n) minor CC was sometimes sad;

o) the arguida BB did not exercise any professional activity;

p) when the arguida was living with partner II, minor CC helped her mother with some home chores, as she sometimes helped to clean the house, took care of her younger siblings and went shopping;

q) before arguida BB moved in with her partner II, she wanted to stop having CC under her care, and left her, at the age of 5 months, with her father, LL – with whom she had no relationship since the beginning of the pregnancy – who ended up ‘returning’ her 2 days later, and later, she once more handed her over to the father, who didn’t want to keep her;

r) in September 2003, arguida BB left CC under the care of a couple of persons with alcoholism problems and with a bed-ridden child that had an infecto-contagious illness, in a house with no conditions whatsoever, for 2 or 3 weeks;

s) on the first day of school for minor CC at the Primary School in Figueira, in the school year of 2003/2004, arguida BB didn’t walk the minor to school, and CC arrived with a neighbour, whom she asked for help because she couldn’t find the way;

t) on another occasion, the same neighbour took the minor to hospital, at a moment when she was visibly ill with a strong cough;

u) in the early morning of the 12th of September 2004, arguido AA, after a row with his brother UU, went to the arguida BB’s house, taking his clothes with him, and during the 12th he stayed in that house, which is located in the village of Figueira – Mexilhoeira Grande, in the area of Portimão;

v) in the late afternoon of the 12th, his sister, arguida BB, and her children, CC, JJ and KK, returned home;

x) at around 8 p.m. on that 12th of September, arguida BB sent CC to buy a package of milk and two cans of food, at a shop called “Pastelaria…”, in Figueira, at a distance of approximately 420 metres from the house;

z) the living room of the house where arguida BB lived, is located immediately after the main door and the door that offers access to the street has a handle on the outside that allows for direct entry into the residence;

aa) minor CC returned home from “Pastelaria…”, where she had bought the aforementioned food products;

ab) at a certain point in time, due to a motive that has not been exactly established, both arguidos started, conjointly, to successively hit minor CC on the head, prompting her to hit her head on the wall’s corner, being visible that she bled, from her mouth, her nose and her temple, due to the hits against the wall, which also caused the minor’s fall and her death, thus ceasing the arguidos’ activity;

ac) traces of blood from the minor remained on the living room’s walls and floor, on various spots, and also near the entrance;

ad) the arguidos ensured that CC was dead, verifying that she neither breathed nor reacted, and then, not wanting to be held responsible over their daughter’s and niece’s death, decided to prevent said death from becoming known to others;

ae) therefore, they soon decided that they would have to ensure that the existence of any signs in the house of what they had just done could not be verified, that the minor’s body would never be found and that, preferably, everyone would be convinced that the minor had been taken by a third party;

af) therefore, arguida BB remained at home, washing the wall and the floor that had signs of blood from CC, as well as the spot where the minor remained slumped after death, using a mop and its bucket to do so;

ag) and, as they knew that arguida BB’s partner – II – and his friend, MM, were about to arrive at home, and could discover what had happened there if they arrived before the traces were cleaned, at around 9.30 p.m. arguido AA left, headed towards “Pastelaria …”, where he met II and MM, who were already there, and whom he told that minor CC had not returned home;

ah) when the three of them returned home, arguida BB had already cleaned the existing blood marks, and equally mentioned that minor CC hadn’t returned home after doing the shopping;

ai) confronted with what the arguida was saying, II and MM decided to go out and look for the minor, while the arguidos remained at home;

aj) the arguidos then decided, conjointly, to cut the minor’s body in order to make it possible to store it in the deep freezer that existed in the living room;

al) to pursue that purpose, the arguidos provided themselves with a knife and a metal-cutting saw that were available inside the house, instruments that were apt to obtain the results that they intended, within approximately 30 minutes;

am) with said instruments, helping each other, the arguidos cut CC’s body, separating the head from the torso and cutting the legs at the knee area;

an) each one of those body parts was placed inside plastic bags – the head in one, the torso and part of the legs in another and the two legs below the knee in a third one – and after they knotted up the opening of the bag that contained the head, they tried, at least, to place said bags inside the deep freezer’s three compartments, leaving blood from the minor on several areas inside the deep freezer’s second drawer;

ao) the arguidos did not place the shoes that the minor was wearing, inside the bags, and all the pairs of shoes that the minor was using that summer, stayed inside the house;

ap) as the minor had already been dead for approximately two hours, not a lot of blood left the body;

aq) between 10.30 and 11 p.m., the arguida BB joined her partner II and MM, to whom she reiterated that CC was missing, and only at that point in time did she go to "Pastelaria ....." and asked the owner (NN) if CC had been there, then saying that she had disappeared;

ar) nevertheless, the arguida didn’t inform the police authorities about anything, despite there being GNR officers on duty in Figueira, because a popular fair called “Mussels Party” was taking place, and it was the third person (NN) that did it by telephone, at around 0.44 a.m. on the 13th of September, when she heard that the arguida hadn’t done so yet, and it was following said telephone call that the arguida ended up talking to GNR officers near the church in Figueira;

as) at that point in time the arguida said she hadn’t phoned because she had no credit on her mobile phone;

at) later on, at around 2 a.m., the arguida bought cakes in a pastry shop in the same village;

au) on the morning of the 13th, the arguida BB went to the GNR Station, in Portimão, accompanied by arguido AA, where she filed a complaint over the disappearance of CC;

av) and through the intervention of third parties, relatives of her partner II, the alleged ‘disappearance’ truly started to be publicised, with the distribution of photographs of CC, because until then the arguidos had intended not to alert the authorities;

ax) at the end of the night of the 13th, the arguidos left the house together, carrying a bag;

az) the arguido AA remained at the arguida BB’s house until the 14th, a time lapse during which the two arguidos, in a manner that was not possible to determine, transported CC’s mortal remains to an unknown location, thus fulfilling the intention that they had proposed themselves to – to prevent the finding of said mortal remains – and those remains have not been found to this day, just as the cutting instruments, which the arguidos have hidden in an unknown location, haven’t been found;

aaa) the arguida BB gave interviews to the media, trying to make believe that the minor had in fact disappeared, a version that she maintained in front of many of the people who were interested in the minor’s destiny and questioned her about the matter;

aab) during those interviews about the case, arguida BB sometimes mentioned her daughter in the past tense and wore a black blouse;

aac) ticks, namely so-called “little leads” (ticks in their early adult phase) have receptors for chemical stimuli that are associated to temperature, which allow for them to detect the existence of blood-specific chemical compounds;

aad) on the 18th of September, arguida BB bought petrol and a steel scrub-cloth, with which she washed the house, thus seizing the opportunity to erase almost all vestiges of what had happened there, and only traces of human blood which had been contaminated by the products that were used, remained inside the house;

aae) through an indication from arguida BB, Polícia Judiciária agents went to the house of arguida BB’ eldest daughter’s paternal grandmother (EE), in Olhão, searching for CC, and also investigated if an individual of Moroccan nationality had taken the minor;

aaf) when presented to a clinical psychologist, within an examination that was performed within the process’ scope, arguida BB mentioned the existence of neighbours of Brazilian nationality who might have taken CC with them, because they had two “good” cars and left the area on the same date on which the minor had “disappeared”;

aag) following indications from arguido AA, PJ agents searched for CC’s body in a brown earth embankment that is located near the road that accesses Mexilhoeira, then on other locations nearby, further away in Poço Barreto, in a wrecked car, in Silves, under the Arade River bridge;

aah) the arguidos managed to disturb the investigative activities and prevented the mortal remains of minor CC, whose life they took, from being located;

aai) the aforementioned activities were carried out by the arguidos under concerted efforts and intentions, in a deliberate, free and conscious manner, fully knowing that those behaviours are punished by law;

aaj) therefore as far as taking the life of CC, their direct relative (daughter and niece), is concerned, which they did by employing force, taking advantage of the fact that she couldn’t defend herself (taking into account her age and physical built) and using force in the full knowledge that, considering the vital area in which her body was hit (the head) repeatedly and violently, prompting the minor’s head to hit the wall, they could take her life away from her, a consequence which they accepted, still not ceasing their activity;

aal) not seeing as an obstacle the circumstance that the minor depended on her mother and was a direct relative of both, and should be defended instead of victimised by them;

aam) in the same deliberate, free and conscious manner, and knowing that such behaviour is punishable, they carried out the above described action of cutting CC’s body, demonstrating total insensibility, knowing full well that, in this manner, they offended the communitarian respect that is due to the dead, acting with the purpose of CC’s body never being found again, hiding it in a location that is not appropriated for the effect, in order to try to avoid responsibility for her death;

aan) the arguida BB has no criminal record;

aao) the arguido AA, apart from the above mentioned condemnation under item e), was further condemned, in 1995, under a sentence that has been validated in court, for the practise of a qualified theft, to a penalty, accumulating with the penalty that was imputed over the crime of attempted murder, of 3 years and 8 months in prison; in 2001, over the practise of a crime of illegal driving of a vehicle, he was condemned, under a sentence that has been validated in court, to a penalty of 90 days of fine; and in 2003, over the practise of a crime of illegal driving of a vehicle, he was condemned, under a sentence that has been validated in court, to a penalty of 6 months and 15 days in prison, which was suspended in its execution, in exchange for the compliance with conditions, a suspension that was later revoked;

aap) in terms of schooling, the arguida BB completed 3rd grade, never exercised any profession and married at the age of 18;

aaq) in terms of schooling, the arguido AA completed 4th grade and has worked since he left school, but always exercising undifferentiated services and without any contract;

aas) the arguidos were born within a large family (the parents and 9 siblings), where the father’s alcoholic habits and the financial difficulties stood out.

9. 2. Facts considered not to be proved:

1- that the arguida BB, throughout her life, failed to provide her children with basic care, mistreating them;

2- that HH, arguida BB’s son, was helped by neighbours;

3- that the arguida BB voted her daughter CC to disinterest and overloaded her with work, forcing her to carry out the domestic chores that she should perform but did not;

4- that the arguida BB abandoned CC, just like she had done with her other children;

5- that the second time when the arguida BB handed CC to her father, the minor was approximately aged 3;

6- that minor CC was a source of fighting between her mother, arguida BB, and the stepfather II, up to the point where she was threatened by them to be expelled from home;

7- that at around 8 p.m. on that 12th of September, when the two arguidos were alone, they decided to maintain sexual intercourse between them, being that BB’s minor children were no impediment for that action, because they were asleep in a room, but CC could not watch such actions;

8- that when CC ledt the house, the arguidos started to copulate with each other, on the living room sofa, and that they were still having intercourse when the minor returned home;

9- that upon seeing what her mother and uncle were doing, minor CC said that she was going to tell her stepfather that they were “doing dirty things”, and tried to leave the house;

10- that the arguidos got up from the sofa, heading towards CC, attempting to prevent her from denouncing what she had witnessed to II;

11- that CC hit the wall’s corner with the left side of her head and that said wall was the one that is located near the main door;

12- that CC tried to flee from the house, then being pulled inside by arguido AA;

13- that CC left hand prints and facial imprints on the walls, either on the outside or on the inside, near the main door;

14- that the arguidos placed the minor’s body, wrapped up in a duvet cover, in the corner of one of the bedrooms in the house, in a spot that was not visible to anyone who might eventually enter it, for later to decide what destiny it would be given;

15- that arguida BB used detergent and bleach to wash the wall and the floor where blood spots from CC were;

16- that arguido AA had a beer with II and MM, at the "Pastelaria ...", in order to further delay their return home;

17- that the arguidos thought about placing the minor’s body in a sanitary cess-pit that was located near the house, for which arguido AA went to the location, yet verified that such would not be possible because said pit’s lid was partially cemented, which he informed arguida BB about;

18- that the knife with which the arguidos cut the minor’s body had a black handle;

19- that the arguidos placed CC’s body on the living room floor, on a blanket;

20- that the arguidos knotted the opening of the bags that contained the torso and the legs;

21- that the arguidos effectively placed the three bags inside the tree compartments of the deep freezer;

22- that the arguidos changed the clothes that they were wearing and that arguida BB, once again that night, washed the blood that had remained on the floor;

23- that on the night of the 12th of September arguida BB invoked CC’s ‘disappearance’ to the persons that she met (with an exception for II, MM and NN whom she told about said ‘disappearance’);

24- that the bag which the arguidos were carrying late in the night of the 13th of September contained the instruments that had been used to cut the minor;

25- that meanwhile, ticks started to appear in the house, due to the aforementioned activity;

26- that already after her arrest, arguida BB did, several times, impute co-arguido AA with the full responsibility for the facts, also that she imputed MM with it as well, apart from having mentioned that the body was placed inside a car that was destined to be pressed in Spain, or on several locations that she indicated throughout time;

27- that arguido AA, during the first interrogation, indicated that CC’s body is beneath a bridge that connects Figueira with Mexilhoeira, on the opposite side of the location that had initially been indicated, and that, afterwards, he indicated a brother of his as having transported the body;

28- that the arguidos acted merely with the purpose to preven the minor from denunciating what she had seen, to her stepfather;

29- that the minor CC depended upon arguido AA."



source: Supreme Court of Justice - ruling SJ200604200003635, 20.04.2006

Motivation of the Court Jury Conviction [sentence explanation]

The validation of the proven and not proven facts based itself in the global evidence produced at the trial hearing and according to the open conviction that the court has formulated over the same evidence (always taking into attention the rules of experience), observing the expert evidence, written and spoken which was produced, and using, regarding this one, a scientific reasoning and exemption for each of the statements presented.

Thus…

The arguidos preferred to remain silent.

None of the inquired witness declared to have watched the punishable facts, even thought that some reported facts important for the court’s conviction.

Let see what the witness stated.

The witness OO, mother in law of the arguida BB [Leonor Cipriano], declared that her son married the arguida and from that matrimony was born EE [Leonor Cipriano’s oldest daughter], her granddaughter. She referred that arguida BB left home when the daughter was 11 years old, and that she never saw her[BB] again. She also said that arguida BB called once to know if she could pick up EE, but when the witness answered that she would have to speak with EE’s father, she lost interest. The witness also referred, at a time where the disappearance of CC [Joana Cipriano] was already being talked about, that the arguida went to the witness house in Olhão, escorted by the Judiciary Police, to whom the arguida said that CC could be in there.

The witness PP, who lived with the arguida BB [Leonor Cipriano] for 5 years, said that he is the father of HH, son of the arguida BB, and that she left him when the son was 7 months old. He stated that the arguida left to go and live with II, and left the baby in a chair, secured with a belt, it was a foreigner lady, neighbour, who went to pick him up and who delivered the baby to the witness [PP] when he got home.

The witness QQ, who is still married with the arguida BB [Leonor Cipriano], even though that he is separated for several years, only referred that the arguida left him when EE, daughter of both [of QQ and BB] was 11 months, and to the best of his knowledge, the arguida never saw the daughter again.

The witness RR, aunt from the father side of the minor FF (son of the arguida BB [Leonor Cipriano], who is now 12 years old and lives with the witness, after being entrusted to her by the Court), referred that the arguida BB never cared about the son and since he was 2 months old it was the mother of the witness and Marcos’ grandmother who took care of him, given that the arguida didn’t even bathe the baby, and more than once she went away from home for a week, even though she returned; until she left for good.

The witness LL, father of the minor CC [Joana Cipriano], said that he separated from the arguida BB [Leonor Cipriano] when she was pregnant and that she delivered CC with 5 months old to him, stating that she couldn’t care of the baby. The witness said that had CC under his care for 2 days but then he gave her back to the mother. More, he said that on the 13th of September 2004, around 12h30m, the arguida BB went to look for him and asked him if he had went to pick up CC, because she was missing. The witness answered no. The witness also stated that at the time, the arguida BB did not seemed worried, nor shocked, also she wasn’t crying and that the woman who was with her appeared to be more worried than her.

The witness TT, CC’s teacher at the School of Figueira, from the 20st of January to June 2004, told that CC [Joana Cipriano] arrived on the 1st day to the school late and that she was accompanied by BB3 from the supermarket, CC explained that the reason for her being late was that she was lost. She referred that CC was a quiet girl, some days she would be sadder, others more joyful. She said that at the beginning CC was a student who had learning difficulties, because she had missed school too much, but then she was able to catch the others. CC didn't appear her to be a mistreated child; she didn’t show up dirty or with abuse marks on the body. When she was asked she referred that CC should measure 1,32 meters, or maybe more, but that she had never measured her.

The witness SS, psychologist working at the Protection of Minors Commission of Portimão affirmed that the Commission received a Process of Promotion and Protection of minors which as then sent to the Protection of Minors Commission of Lagoa, where it was referred the fact that CC [Joana Cipriano] was given by the mother to an elderly couple, who were alcoholic and had other problems. Meanwhile the mother had picked her up and they now lived in the Portimão area. At that time the mother said that she had left CC with that couple, just for two or three weeks, so that she wouldn’t miss school while she[BB] arranged her school transference. Later on they [the Protection of Minors Commission] received a report from the school describing negligence at the alimentation and hygienic level. In the sequence of that report, in April or May 2004 the witness made a domiciliary visit to CC’s mother house and verified that BB [Leonor Cipriano] was making lunch and that there were clothes put to dry. She went to the school and the teacher told her there were rumours that CC worked too much at home, but that she never saw anything, and that CC was an average student. They spoke with neighbours who said that they saw CC playing. They spoke with CC, who told them that she enjoyed helping her mother with her brothers, And they decided to archive the process.

(on how to evaluate evidence, and on the reconstitution)


"After “going through” the witness evidence, we verify that there is no direct evidence of the facts, namely due to anyone seeing the crime being committed.

Even more, there is even no direct evidence of the homicide, because the minor’s dead body has not appeared.

What did the Court base itself on, then, to give the facts as proved? That is what we proceed to describe.

Article 124º 1 of the Penal Process Code defines what is valid as evidence in court; it determines that “all the facts that are juridically relevant to the existence or inexistence of the crime, to the arguido’s punishability or non-punishability and to the determination of the applicable penalty or security measure, are objects of evidence”. In this article, where the issue of evidence is regulated, it is established that all the facts that are juridically relevant to the existence or inexistence of the crime, to the arguido’s punishability or non-punishability, or that are relevant for the determination of the applicable, can be evidence. The absence of any limitations to the facts that are to be proved, or the means of evidence to be used, with an exception for those that are specifically foreseen in the following articles or under other legal provisions (only evidence forbidden by law or obtained through forbidden methods – articles 125 and 126 of the same code), is an outcrop of the principle of searching for the material truth that still dominates the Portuguese penal process (Maia Gonçalves, Cód. Proc. Penal, 12ª ed., p. 331).

Evidence may be direct or indirect/indicative (Prof. Germano Marques da Silva, Curso de Proc. Penal, II vol., p. 99 ss). While the direct evidence refers directly to the theme of evidence, the indirect or indicative evidence refers to facts that are diverse from the theme of evidence, but which allow, with the assistance of rules from experience, for an illation concerning the theme of evidence.

Indirect (or indicative) evidence is not a “minus” compared to direct evidence. Quite to the contrary, as while it is certain that in indirect evidence there is an intervention of intelligence and logics from the judge who associates the indicative fact to a rule of experience that will make it possible to reach a conviction concerning the fact to be proved, in direct evidence there is intervention of an element that surpasses reason and that will be much more dangerous to determine, as is the case of the credibility of testimony. Nevertheless, indirect evidence demands particular caution in its appreciation, since the proved fact can only be extracted from the indicative fact when such is corroborated by other pieces of evidence, so that other equally possible hypotheses can be set aside.

Our penal process law does not establish special requisites concerning the appreciation of indicative evidence, thus the fundament for its credibility always depends on the conviction of the judge which, despite always personal, must always be motivated and subject to objection; there is no impediment to it being allowed to fundament the condemnation, as long as duly valued, in itself and in the conjugation of the various indications and according to the laws of experience.

In effect article 127 of the Penal Process Code prescribed that “except for when the law disposes differently, the evidence is appreciated according to the rules of experience and the free conviction of the competent entity”. This is the so-called principle of free appreciation of evidence.

According to Prof. Germano Marques da Silva (Direito Processual Penal, vol. II, p. 111), “the free valuation of evidence must not be understood as a purely subjective operation which leads to a conclusion merely through conjectures that are hard or impossible to objectivate, but rather as a rational and critical valuation, according to common rules of logics, of reason, of the maximums of experience and of scientific knowledge, which allows for an objective appreciation, a requisite that is necessary for an effective motivation of the decision”.

The Constitutional Tribunal (Ac. nº 464/97/T, D.R., II Série, nº 9/98 de 12.1) also, asked to pronounce itself on the constitutionality of the norm in article 127 of the Penal Process Code, and supported by the teachings of Professors Castanheira Neves and Figueiredo Dias, refers that “this justice, which counts with the system of free evidence (or moral evidence) does not open itself, by being that way, to subjectivity or emotionality. This justice demands an ordinate intellectual process that manifests and articulates the facts and the law, the logics and the rules of experience. The judge gives the evidence a positional value, a meaning within context, which enters the argumentative discourse with which the decision will be justified. This discourse is a discourse with fundaments that the ‘practical reason’ recognises as such (Kriele), as only in this manner can the obtaining of law in the case “be apt for consensus”. The justification of the decision is always a rational and argued justification and the valuation of evidence cannot abstract itself from said intention of rationality and of justice”.

The principle of free appreciation of evidence has two sides: on its negative side it means that in the appreciation (valuation, graduation) of evidence, the deciding entity has no duty to obey any legally pre-established canons – it has the power/duty to attain the proof of facts and to value it freely, without the existence of any pre-fixed hierarchical table from the legislator; on its positive side, it means that facts are considered as proved, or not, according to the intimate conviction that the deciding entity generates when faced with the evidential material that is valid part of the process, whether it comes from the accusation, or from the defence, or from his [the judge’s] own initiative (Ac. da Relação de Coimbra de 9.2.2000, in C.J., ano XXV, tomo 1, p. 51).

Therefore...

The matter that was considered to be proved in items aa), ab), ac), ad), ae), af), ag), ah) ai), aj) al), am), an), ap), aah), aai), aaj) and aam) was based on the deposition of witnesses AA3, CC3, CC4, DD, CC8, II, DD1 , MM and BB1, on the reconstitution files and on the search and apprehension files, as well as on the subsequent forensic exam, all interpreted under the light of the rules of experience.

Witness AA3, at around 8.30/8.40 p.m., saw CC [Joana Cipriano] walking up the stairs near the market, into the direction of her home, with a bag, a sign that she was returning from shopping (and we know that she did the shopping, from the deposition of witness NN). This witness, who was smoking at the window, stayed at the window for some time and verified that there was no movement on location, nor did she see any cars, or heard any screams. This means that, according to the rules of experience, and given the fact that the route is short, what is normal is that the minor returned home. And there is no doubt that CC arrived at home and that it was then that the arguidos hit her. Such is clear from the reconstitution file that has been appended to the process at pages 273 and following, namely from the photographs on pages 282, 284, 285, 286 , 287, 291 and 292, with the contents of said reconstitution file being confirmed by inspectors CC3 and CC4, who were present during the event and described the actions that were practised by arguido AA [João Cipriano] during said reconstitution.

In that reconstitution, the arguido exemplifies the slaps that he gave CC in the face, the spot where she hit her head, another spot where she hit her head following the aggression from the mother, he showed how the minor bled from the nose, temple and mouth, exemplified the minor’s fall, how they verified that the minor was effectively dead and how the co-arguida BB [Leonor Cipriano] proceeded to clean the blood spots, with the help of a bucket and a mop.

On the other hand, the actions that are part of the reconstitution act are compatible with the blood traces that were collected in the living room (it should be noted that the reconstitution takes place in the living room), as a result of the search and apprehension act that was carried out on the 22th of September 2004 (cfr. pages 173 and 233 and following), which mentions that traces were collected on the floor, near the entrance door, inside and outside, near the interior electrical switch on the right hand side of the entrance door, near the entrance on the left hand side of the sofa, on a pair of trainers belonging to MM [Leandro] Silva that were located between the sofas, on a mop (handle) and its bucket.

These traces, according to forensics exams, are of human blood and of human and animal blood (cfr. page 235), and although insufficient to establish whom they belong to through the DNA (pages 1780 and following), they reveal that something terrible happened in that living room, something that originated the existence of human blood on the floor and on the walls, which was cleaned with a mop and a bucket; the blood that was on the mop was located on the handle, revealing that the person who used the mop had in turn his or her hands dirty with blood. Therefore, the traces that were collected in the living room reinforce the reliability of the reconstitution.

Next, the two arguidos decided that the minor’s body couldn’t be found. Thus they chose to quarter it, as results from the reconstitution file from pages 2100 onwards. They had the opportunity to do this (while arguida BB cleaned the traces that existed in the living room, arguido AA went to the café where he met witnesses II and MM [Leandro Silva], who confirm that they were at the café with arguido AA and report that afterwards they went to search for CC – thus the two arguidos had the opportunity to stay alone at home and to proceed with the quartering). And there are no doubts that the arguidos undertook the cutting of the minor’s body.

In effect, arguido AA drew the instruments that were used for the quartering by his own hand (page 1885) – a fact that was confirmed by witness DD – and took part in the reconstitution, demonstrating how he used the saw and the knife, how the two arguidos helped each other, how they proceeded with the cuts, the time that they took, how they bagged the minor’s body parts and how they tried to place them inside the deep freezer. This reconstitution, which is legal and valid because it was done voluntarily by the arguido, was watched by witnesses DD (PJ inspector) and CC8 (pathologist), who also confirmed the manner in which the arguido proceeded with the reconstitution; witness DD further confirmed that the deep freezer that was used in the reconstitution was apprehended at the residence of arguida BB on the 15th of October 2004 (cfr. Pages 578 to 580 and photographs on page 1712 and following).

On the other hand, that the actions that are part of this reconstitution file constitute what happened, results from the fact that they are compatible with other collected pieces of evidence.

It should be noted that witness II confirmed that a saw that she kept in the house, disappeared, and that witness CC8, apart from clarifying that the cutting of a body that has been dead for two hours will leak little blood, further clarified that the instruments that the arguido chose to use in the reconstitution were those that fitted the action best, that the time that the arguido showed to have spent was adequate and did not exclude the possibility that the body of a thin girl, aged 8, could fit inside that deep freezer, although “on the limit”.

Therefore, we cannot conclude with certainty that the body, or all parts of the minor’s body were placed inside the deep freezer, but that at least they tried to place it in there, results not only from the reconstitution act, but also from the fact that on the 16th of October 2004, human blood samples were collected from the back interior of the freezer’s second drawer (cfr. Page 585), which was again confirmed by the report of the examination that was performed by the LPC [Scientific Police Lab] (pages 1780 and following, with special attention to pages 1786 (item B) and 1792). It is further recalled that witness CC3 explained that the blood traces that were collected from the inside of the drawer were located precisely on the back panel of the freezer’s second drawer. Now if one should consider the possibility that the human blood that was found could have resulted from the handling of the deep freezer by someone who had a cut to his or her hand, the fact that the human blood was found inside the back part of the drawer sets that possibility aside and points towards the conclusion that a human body part was placed there, or an attempt was made.

As was said, in this matter the Court has paid particular attention to the reconstitution files that are part of the process, with a photographic report, on pages 273 and following, and 2100 and following."


in Supreme Court of Justice - ruling SJ200604200003635, 20.04.2006

"Apart from the reconstitution files and the witness and forensics evidence that is related to them and which corroborates them, it should be further stressed that several of the questioned witnesses mention the arguida’s [Leonor Cipriano] lack of concern over the minor’s “disappearance”, accepting it without despair or anguish. It should be noted that the arguida only goes to “search” the minor at the café between 10.30 and 11 p.m. (according to witness NN), more than two hours after CC [Joana] was there; she contacts nobody else to ask about CC’s whereabouts and it is not through her initiative that the GNR is contacted. It is further underlined that the arguida bought petrol and a steel scrub-cloth (page 876), with which she washed the house on the 18th of September, and witnesses CC3 and CC4 mentioned that the cleanliness of the house’s floor and walls contrasted with the state of dirtiness of the rest of the house, namely as far as the dishes and clothes were concerned – this kind of cleanliness, under these circumstances, is only compatible with the desire to eliminate traces of blood that could have remained in the house.

We can conclude that the representation that was made by arguido AA [João Cipriano] in the reconstitution files from page 273 onwards, concerning the outcome of the aggressions, results from the manner how those were produced, with them successively applying violence that revealed itself apt to produce hits of the victim’s head against the wall, therefore in all lights they could not have avoided knowing the outcome. The manner in which the quartering of the cadaver is performed, patent in the reconstitution file from page 2100 onwards, leaves no doubt concerning the direct intent of the action and also about its motive.

This is enough to fundament the Court’s conviction concerning the correspondent facts.

It is further added, and concerning the same factuality, that witness DD1 (II’s stepfather) stated that arguido AA confided to him that “they had killed the girl”. Witness II [Leandro Silva] also mentioned that BB [Leonor Cipriano] told him that “she had slapped CC and AA finished killing her” (later on, arguida BB tried to justify the statement by telling II that she had only said that because the PJ had hit her, but on the day that she mentioned the aggression against CC, BB and II were alone and he did not see any marks on BB that she had been beaten, and there was no motive for her to make such a statement to her partner if it wasn’t true). Of course these witnesses’ statements cannot be seen as a confession from the arguidos – who did not confess, but rather opted for silence during the court session – but that doesn’t mean that they cannot simply not be valued by the court.

Article 129 of the Penal Process Code establishes the prohibition, in principle, of testimony that doesn’t verse on concrete facts and direct knowledge, particularly on “hearsay testimony”, hence the determination of the need to confirm the indirect deposition, with the consequent hearing of the persons “who one heard saying”. Only after such confirmation may such an indirect deposition become effective as a means of evidence, but in this case the confirmation would have to be made by the arguidos and they chose not to make any statements nor can they be forced to make them. According to number 7 of article 356 of the Penal Process Code, which number 2 of article 357 points to, it is not allowed to reproduce the contents of statements whose reading is not authorised, with a recourse to the person who collected them, which is well understood, but the witness statement of a person who is not a criminal police member and who didn't collect statements, but merely asked and heard the reply, is a different thing

Alas, our superior courts have already decided that: “the hearsay evidence, when reported to statements that were produced by the arguido outside of the process, is subject to free appreciation by the court (Ac. da RC de 6.10.1988, BMJ 380, p. 552); “if the witness reports having heard the confession from the arguido himself, such does not configure indirect deposition under terms and for the effect of article 129 of the Penal Process Code (Ac. STJ de 15.11.2000, proc. 2551/2000-3ª); “the hearsay evidence, when reported to statements that were produced by the arguido outside of the process, can be subject to free appreciation by the court when the arguido is present during court session, therefore, with the full possibility of contradicting it, which is to say, to defend himself” – in this case, the arguido had chosen to remain silent during court session (Ac. RC de 18.6.2003, CJ 2003, tomo III, p. 51).

The Constitutional court has also decided already that “article 129 1 (in conjugation with article 128 1) of the Penal Process Code, interpreted in the sense that the court may freely value the indirect depositions of witnesses that report conversations held with a co-arguido who, when called to depose, refuses to do so in the exercise of his right to silence, does not impact the arguido’s defence right in an intolerable, disproportionate or manifestly oppressive manner. Therefore, as there is no inadmissible shortening of the arguido’s defence right, that form is not unconstitutional” (Ac. Trib. Constitucional nº 440/99 de 8.7, proc. 268/99, DR II Série de 9.11.1999).

With the complete set of indicative evidence conjoined, the Court has created the conviction that CC is dead (the appearance of the body is unnecessary given the Court’s conviction that the arguidos have made it disappear in the manner that has been described) and that it was the arguidos who practised the facts. All the established elements, appreciated in conjunction, have set aside any reasonable doubt and have created the full conviction that both arguidos have committed the facts in the manner that is described in this ruling."



in Supreme Court of Justice - ruling SJ200604200003635, 20.04.2006



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