* ON THE ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
67 . The applicants complain that they were unsuccessful at domestic level despite the damage that GA allegedly caused to their reputation, their credit, their image and their right to the presumption of innocence. As indicated above (see paragraph 66 above), this part of the application should be examined under Article 8 of the Convention alone. In its relevant part in this case, Article 8 is worded as follows:
“1. Everyone has the right to respect for his private and family life (...).
(...)»
* On admissibility
1. Applicability of Article 8 of the Convention
68. The Court reiterates that the concept of private life is a broad concept, which includes elements relating to the identity of a person, such as his name, his image and his physical and moral integrity ( Von Hannover v. Germany , no. 59320/00 , § 50, ECHR 2004‑VI). It is accepted in the Court's case-law that a person's right to the protection of his reputation is covered, as part of the right to respect for private life, by Article 8 of the Convention ( Axel Springer AG v. Germany [GC], No. 39954/08 , § 83, 7 February 2012, Delfi AS v. Estonia [GC], No. 64569/09 , § 137, ECHR 2015, Bedat c. 56925/08 , § 72, ECHR 2016, and Medžlis Islamske Zajednice Brčko and Others v. Switzerland [GC], no . Bosnia and Herzegovina [GC], no. 17224/11 , § 76, ECHR 2017). The Court has already ruled that a person's reputation is part of his personal identity and moral integrity, which belong to his private life even if that person is the subject of criticism in the context of public debate ( Pfeifer v. Austria , No. 12556/03 , § 35, 15 November 2007, and Petrie v. Italy , No. 25322/12 , § 39, 18 May 2017). The same considerations apply to a person's honor ( Sanchez Cardenas v. 12148/03 , § 38, 4 October 2007, A. v. Norway , no . 28070/06 , § 64, 9 April 2009, and Kaboğlu and Oran v. Norway , no . 1759/08 and 2 others, § 65, 30 October 2018).
69. However, for Article 8 of the Convention to come into play, the injury to personal reputation must be of a certain level of gravity and must have been carried out in such a way as to cause prejudice to the personal enjoyment of the right to privacy (see Bédat , cited above, § 72, Denisov v. Ukraine [GC], no. 76639/11 , § 112, 25 September 2018, Beizaras and Levickas v. Lithuania , no . 41288/15 , § 117, 14 January 2020, and De Carvalho Basso v. Portugal , (dec.), nos . 73053/14 and 33075/17 , § 43 , 4 February 2021).
70 . The Court notes that the statements at issue made by GA in the book, the documentary and the interview in question relate to the applicants' alleged involvement in the concealment of their daughter's body, to the assumption that they staged kidnapping and alleged acts of negligence towards their daughter (see paragraphs 21-22 above). It considers that these assertions are of sufficient gravity to call for the application of Article 8 of the Convention (see, mutatis mutandis , Sanchez Cardenas , cited above, §§ 33 and 38, and compare with Jishkariani v. Georgia , n 18925/09 , § 47, September 20, 2018).
2. Conclusion
71. Finding that the complaint under Article 8 of the Convention is not manifestly ill-founded or inadmissible on another ground referred to in Article 35 of the Convention, the Court declares it admissible.
* On the background
1. Arguments of the parties
has) The applicants
72 . The applicants complain of an attack on their reputation and their right to the presumption of innocence on account of the statements made by GA in their regard, in his book, in the documentary which is the adaptation and in the interview given to the daily Correio da Manha . They argue that GA assures in a way that they describe as peremptory, sensationalist and dishonest that they are responsible for the death of their daughter, that they concealed her body and that they disguised the facts as kidnapping. They deplore that such accusations were launched even though the investigation opened following the disappearance of their daughter had just been closed and they had just been cleared. The applicants maintain that GA does not even refer, in his book, to the dismissal of the case by the public prosecutor's office as far as they were concerned. They consider that the alleged infringement was all the more serious since the book and the documentary were translated into several languages, which, in addition, according to them, enabled GA to receive significant profits.
73 . The applicants argue that the statements made by GA against them amount to an improper and unacceptable use of freedom of expression not only because they raise doubts as to their innocence, but also because they call into question a decision made by the prosecution. According to them, this is all the more serious since they were made by the inspector who had been in charge of the investigation and who, in this capacity, was, according to them, bound by the duty of discretion and the duty of confidentiality. , which they consider essential to ensure public confidence in state institutions. Furthermore, they consider that GA benefited from the notoriety which he enjoyed because of his intervention in the criminal investigation opened into the disappearance of their daughter. The latter would have relied on facts which he described as indisputable to assert his thesis and give credibility to the allusions made to them even though they had just been declared innocent by the prosecution. According to the applicants, the Supreme Court's judgment in their case contains a flagrant contradiction in that it considers that the book did not relate anything new in relation to the investigation file, whereas the suspicions which weighed against them would have been raised.
74 . The petitioners consider that the State should have sanctioned GA's behavior, not only because they would be innocent but also to protect their right to presumption of innocence and their reputation.
b) The government
75 . The Government considered that the applicants' allegations based on breach of the presumption of innocence were closely linked to those relating to damage to their reputation and that they were therefore covered by Article 8 of the Convention.
76 . He then states that in the present case the question arose of a conflict between divergent rights deserving, in his view, equal protection, namely, on the one hand, GA's right to freedom of expression and opinion, of its publisher and its producer, and, on the other hand, the rights to the protection of the reputation and to the presumption of innocence of the applicants. The Government notes that, in the present case, the higher national courts upheld the rights of the former by considering that they had not exceeded the limits of admissible criticism, an analysis to which it states that it subscribes for the following reasons. Firstly, the disputed statements, part of a court case that has been the subject of massive media coverage both nationally and internationally, relate to a subject of general interest. Secondly, that significant media coverage resulted for the applicants in a high level of public notoriety. Thirdly, the matters in dispute fell within GA's freedom of opinion and thus benefited from greater protection. Fourthly, the applicants having been indicted because of the suspicions which weighed on them and these elements appearing moreover in the investigation file which had been communicated to the press, the thesis defended by GA in his book would have already been made public. It would therefore not have involved confidential elements. At and thus enjoyed greater protection. Fourthly, the applicants having been indicted because of the suspicions which weighed on them and these elements appearing moreover in the investigation file which had been communicated to the press, the thesis defended by GA in his book would have already been made public. It would therefore not have involved confidential elements. At and thus enjoyed greater protection. Fourthly, the applicants having been indicted because of the suspicions which weighed on them and these elements appearing moreover in the investigation file which had been communicated to the press, the thesis defended by GA in his book would have already been made public. It would therefore not have involved confidential elements. At residing, referring to the judgment SIC - Sociedade Independente de Comunicação c. Portugal (no . 29856/13 , § 69, July 27, 2021), the Government finally considers that a conviction would have had a deterrent effect on the debate on court cases.
77. The Government concluded that the domestic courts had upheld GA's freedom of expression in the present case, in accordance with the margin of appreciation which, in their view, fell to them.
2. The Court's assessment
has) General principles
78. Although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it is not content to order the State to abstain from such interference : this negative undertaking may be add positive obligations inherent in effective respect for private or family life. These obligations may require the adoption of measures aimed at respecting private life even in the relationships of individuals with each other ( Söderman v. Sweden [GC], no. 5786/08 , § 78, ECHR 2013, and Von Hannover v. Germany (no 2) [GC] , nos 40660/08 and 60641/08 , § 98, ECHR 2012). The responsibility of the State may thus be engaged if the facts in dispute result from a failure on its part to guarantee to the persons concerned the enjoyment of the rights enshrined in Article 8 of the Convention ( Bărbulescu v. Romania [GC], No. 61496/08 , § 110, 5 September 2017, and Schüth v. Germany , No. 1620/03 , §§ 54 and 57, ECHR 2010). The boundary between the positive and negative obligations of the State under Article 8 does not lend itself to precise definition ; the applicable principles are nevertheless comparable. In particular, in both cases, it is necessary to take into account the fair balance to be struck between the competing interests at stake ( Von Hannover ( no . 2) , cited above, § 99).
79. The choice of the appropriate measures to guarantee compliance with Article 8 of the Convention in relations between individuals falls in principle within the margin of appreciation of the Contracting States, and what the obligations incumbent on the State either positive or negative ( ibid ., § 104, with references therein). Similarly, under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in judging the necessity and extent of an interference with the freedom of expression protected by that provision ( ibid. ). However, this margin goes hand in hand with a European control covering both the law and the decisions that apply it, even when these come from an independent jurisdiction. In exercising its power of review, the Court does not have the task of substituting itself for the national courts, but it is for it to verify, in the light of the case as a whole, whether the decisions which they rendered under their discretion are consistent with the provisions of the Convention relied upon ( ibid , § 105, with the references cited).
80. In cases which require a balance to be struck between the right to respect for private life and the right to freedom of expression, the Court considers that the outcome of the application cannot in principle vary according to whether the case has been brought before it, under Article 8 of the Convention, by the person who is the subject of the report or, under Article 10, by the editor who published it. Indeed, these rights deserve a priori equal respect. Accordingly , the margin of appreciation should in principle be the same in both cases ( Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07 , § 91, ECHR 2015 (extracts) and Medžlis Islamske Zajednice Brčko and others , cited above, § 77).
81 . The relevant criteria for balancing the right to respect for private life and the right to freedom of expression are the following : the contribution to a debate of general interest, the notoriety of the person concerned, the subject of the report, the previous conduct of the person concerned, the content, form and repercussions of the publication, as well as, where appropriate, the circumstances of the case (see, Von Hannover ( no 2) , cited above, §§ 108-113, Axel Springer AG , cited above, §§ 89-95, and Couderc and Hachette Filipacchi Associés , cited above, § 93). If the national authorities have carried out this balancing act in accordance with these criteria, there must be serious reasons for the Court to substitute its opinion for that of the domestic courts ( MGN Limited v. the United Kingdom , no . 39401/04 , § 150 and 155, 18 January 2011, and Palomo Sánchez and others v . Spain [GC] , nos .
82. Finally, the Court recalls that, in order to assess the justification of a contested statement, it is necessary to distinguish between factual statements and value judgments. If the materiality of the facts can be proven, the latter do not lend themselves to a demonstration of their accuracy. The requirement that the truth of value judgments be established is impractical and infringes freedom of opinion itself, a fundamental element of the right guaranteed by Article 10. However, even where a statement amounts to a judgment value, it must be based on a sufficient factual basis, otherwise it would be excessive ( Do Carmo de Portugal e Castro Câmara v. Portugal , no . 53139/11 , § 31, 4 October 2016, and Egil Einarsson v. 24703/15 , § 40 , 7 November 2017).
b) Application of these principles to the present case
83. In the instant case, the applicants complained that the domestic courts had failed in the positive obligation, which they believed to be incumbent on them, to protect their right to the presumption of innocence and their reputation (see paragraph 74 above). The Court notes that the national courts clearly identified the interests at stake, namely, on the one hand, GA's freedom of expression and freedom of opinion and, on the other hand, the right to respect for reputation which was linked to the right to the presumption of innocence of the applicants, and that they made the rights of the first prevail over those of the second. They also observed that these rights deserved equal protection and that, in these circumstances, it was necessary to weigh them (see paragraphs 41, 44 and 48 above).
84. The question which arises is therefore whether the national courts have weighed these rights in accordance with the criteria established by the Court's case-law (see paragraph 81 above). For the purposes of the present case, the Court will examine the contribution of the elements in dispute to a debate of general interest, the previous conduct and notoriety of the applicants, the subject of the book, the documentary and the interview and the method of obtaining information as well as the content of the disputed assertions, their repercussions and the particular circumstances of the case.
* Contribution to a debate of general interest
85. As regards the existence of a question of general interest, the Court observes that the national courts have noted that the criminal proceedings brought concerning the disappearance of the applicants' daughter had had a great media impact both at nationally and internationally and that it had been the subject of much debate (see paragraphs 40 (point 76), 45 and 50 above). In its judgment of 31 January 2017, referring to the Court's case-law, the Supreme Court concluded that the case constituted a matter of public interest (see paragraphs 50-52 above). The Government subscribed to such an analysis (see paragraph 76 above). In the eyes of the Court, there is indeed no doubt that GA's book, its adaptation into a documentary and the interview given by him on a daily basis Correio da Manhã concerned a debate which was of public interest. Indeed, the extensive media coverage the case received testifies to the interest it aroused both nationally and internationally. The Court reiterates in this regard that the public has a legitimate interest in being informed and in obtaining information about criminal proceedings ( Morice v. France [GC], no. 29369/10 , § 152, ECHR 2015, and Bédat , cited above, § 63). Moreover, Article 10 § 2 of the Convention leaves little room for restrictions on freedom of expression with regard to matters of general interest, the margin of appreciation of States in this matter being thus reduced. (see, mutatis mutandis , Satakunnan Markkinapörssi Oy and Satamedia Oy v. 931/13 , § 167 , 27 June 2017). The Court considers that this is the case here (compare with Morice , cited above, § 153, and Prompt v. France , no . 30936/12 , § 43, 3 December 2015).
* The prior conduct and notoriety of the applicants
86. As regards the applicants' conduct before the publication of the book and the dissemination of the other impugned documents, the Court notes that the domestic courts found it established that the applicants had informed the press about the disappearance of their daughter and that They had used communication agencies and recruited press attachés (see paragraph 40 above – see established facts nos . 67 and 77). In its judgment of 14 April 2016, the Lisbon Court of Appeal considered that the latter had deliberately exposed themselves to the media (see paragraph 44 above). The Supreme Court, for its part, concluded in its judgment of 31 January 2017 that the applicants had become public persons and that they should therefore show greater tolerance with regard to the control exercised by the public over them ( paragraph 50 above). The Government subscribed to this analysis (see paragraph 76 above).
87. The Court recalls that, while the limits of admissible criticism are broader with regard to any person who is part of the public sphere, whether by his actions or by his position ( Couderc and Hachette Filipacchi Associés , cited above , § 122), in certain circumstances, a person, even known to the public, may rely on a “ legitimate expectation ” of protection and respect for his private life ( Standard Verlags GmbH v. Austria (no. 2 ) , no. o 21277/05 § 53, 4 June 2009, and Von Hannover (no 2 ) , cited above, § 97).
88. The Court understands that, by having recourse to the media, the applicants wanted to use all possible means to find their daughter. Nevertheless, while they were unknown to the public before the facts, the applicants, because of their exposure to the media, ended up acquiring a certain public notoriety and entering the public sphere. They consequently inevitably and consciously exposed themselves to careful monitoring of their actions and gestures (see Axel Springer AG , cited above, § 54, and compare with Ristamäki and Korvola v. Finland , no . 66456/09 , § 53, 29 October 2013, Salumäki v. Finland , No. 23605/09 , § 55, 29 April 2014, and ML and WW v. 60798/10 and 65599/10 , § 106 , 28 June 2018). That being said, the Court reiterates that the mere fact of having previously cooperated with the press is not such as to deprive the person referred to in an article of all protection ( see Egeland and Hanseid v. Norway , no . 34438/04 , § 62, April 16 , 2009). It will therefore be necessary to determine whether the limits of admissible criticism have been exceeded in the circumstances of the case.
