8((()*/Here it is in full:
CASE OF MCCANN AND HEALY v. PORTUGAL
(Application No. 57195/17 )
Art 8 • Positive obligations • Private life • Dismissal of the civil action of the applicants accused of the crime against their missing daughter by a former police officer in charge of the high-profile investigation dismissed for lack of evidence • Matter of public interest • Applicants, having exposed themselves to the media, entered the public sphere • Value judgments based on a sufficient factual basis • Widely debated media affair before public access to the investigation and the publication of the book • Lack of serious repercussions of the assertions of the police on the applicants • Detailed balancing of the interests at stake in compliance with the Court's case-law
STRASBOURG
September 20, 2022
This judgment will become final under the conditions defined in Article 44 § 2 of the Convention. It may undergo shape alterations.
In McCann and Healy v. Portugal,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of :
Gabriele Kucsko-Stadlmayer, President ,
Tim Eicke,
Yonko Grozev,
Armen Harutyunyan,
Father Pastor Vilanova,
Jolien Schukking,
Ana Maria Guerra Martins, Judges,
and de Ilse Freiwirth, Deputy Section Registrar ,
Seen :
the application (no . 57195/17 ) brought against the Portuguese Republic and brought before the Court by two British nationals, Mr Gerald Patrick McCann and Ms Kate Marie Healy (“ the applicants ”) under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“ the Convention ”) on July 28, 2017,
the decision to bring the application to the attention of the Portuguese government (“ the Government ”),
the observations of the parties,
noting that, having been informed of its right to take part in the proceedings (Article 36 § 1 of the Convention), the British government did not wish to avail itself of it,
After deliberating in chambers on August 30, 2022,
Delivers the following judgment, adopted on this date :
INTRODUCTION
1. The application concerns statements made by Mr. Gonçalo Amaral (hereinafter " GA "), a former judicial police inspector, in a book, in the documentary adapted from it and in an interview with a newspaper in subject of the applicants' alleged involvement in the disappearance of their daughter, which occurred on 3 May 2007 in the south of Portugal. Relying on Articles 6 §§ 1 and 2, 8 and 10 § 2 of the Convention, the applicants alleged that these statements damaged their reputation, their credit and their right to the presumption of innocence. They further argue that the reasoning contained in the Supreme Court decisions rendered on January 31 and March 21, 2017 in their civil liability action also violated their right to the presumption of innocence.
ACTUALLY
2. The applicants were born in 1968 and live in Leicestershire, United Kingdom. They were represented by M e R. Correia Afonso, lawyer in Lisbon.
3. The Portuguese Government (“ the Government ”) were represented by their Agent, Ms MF da Graça Carvalho, Deputy Prosecutor General.
* THE GENESIS OF THE CASE
* The disappearance of Madeleine McCann and the investigation opened into this disappearance
4. At the material time, the applicants were on holiday with their three children at the Ocean Club, a hotel complex located by the sea in the village of Praia da Luz, in southern Portugal.
5. On the night of May 3, 2007, Madeleine, their three-year-old daughter, disappeared when she was supposed to be sleeping in the apartment occupied by the family.
6. Around 10 p.m. the applicants called the police, stating that their daughter had been abducted. A search was immediately launched around the perimeter of the hotel.
7. The following day, the public prosecutor's office near the court of Portimão opened an investigation by directing the research on the trail of the abduction.
8 . The investigation was entrusted to Inspector Gonçalo Amaral (“ GA ”), of the Judicial Police (“ PJ ”) of Portimão. From the outset, it had a major media impact, both nationally and internationally.
9. A national of British origin was charged. The suspicions against him were not confirmed, and his indictment was therefore lifted.
10 . Biological and blood traces were detected by British police dogs inside the holiday apartment and in the boot of the vehicle which the applicants had rented a few days after their daughter's disappearance (see paragraph 40 below). Consequently, on 7 September 2007 the applicants were charged ( constituídos arguidos ). They were suspected of hiding their daughter's body after she possibly died in a domestic accident in the flat and of faking a kidnapping. The indictment of the applicants received unprecedented national and international media coverage.
11. On 9 September 2007 the family returned to the United Kingdom.
12. On September 10, 2007, TA, chief inspector of the PJ, drew up a report. In it, he took stock of the investigation, concluding in the relevant parts of the case as follows :
“ (...) according to what has been established, Madeleine would have died on the night of May 3, 2007 inside the apartment (...) occupied by the McCann couple and their three children (.. .).
(...)
B) There was a simulation of abduction ;
C) To make impossible the hypothesis of a death of the child which would have occurred before 22:00, one invented the existence of a plan supposed to organize the surveillance of the children of the McCann couple during their sleep ;
D) Kate McCann and Gerald McCann are involved in the concealment of the body ( ocultação de cadáver ) of their daughter Madeleine McCann ;
E) For the moment, there does not yet seem to be any clues that would show that the death of the child did not occur as a result of a tragic accident ;
F) from what could be established, everything indicates that, in the interest of their defence, the McCann couple do not wish to hand over the body immediately and voluntarily ; it is very likely that it was moved from the original place where it was deposited (...) ”.
13 . In his report, Inspector TA asked the public prosecutor's office to have the applicants heard again and possibly subject to a measure of constraint.
14 . On October 2, 2007, GA was removed from the investigation after making controversial statements to the press.
15 . He retired on July 1 , 2008.
* The classification without follow-up of the investigation
16 . On 21 July 2008 the public prosecutor's office issued a decision to discontinue the investigation ( arquivamento do inquérito ) pursuant to Article 277 of the Code of Criminal Procedure (“ CPP ”) (see paragraph 61 below). It concluded, as follows, in its relevant parts in this case :
" (...)
Since some of the points put forward by the accused and by the witnesses seemed to present some contradictions (...) it was decided to proceed to a reconstruction of the facts (...) in order to duly clarify the following details on the scene of the facts , which are extremely important :
(...)
4. What happened between 6:45 p.m. and 7:00 p.m. (...) and the time at which the abduction was reported, that is around 10:00 p.m .;
5. (...) form the firmest possible conviction about what [JT] and the other intervenors witnessed and, eventually, dispel once and for all any lingering doubt about the innocence of the parents of the disappeared.
To this end, (...) the appearance of witnesses was requested (...).
However, although the national authorities have taken all steps to facilitate their movement to Portugal, for reasons that we do not know, after numerous explanations were given to them concerning the necessity and the advisability of their movement, they chose not to appear. Also, the [reconstruction of the facts] could not take place.
For us, this has mainly prejudiced the McCann defendants. They have indeed lost the possibility of proving all that they have advanced since they were indicted, that is to say their innocence in the face of the fateful event ; the investigation was also hampered because these facts could not be clarified (...).
While the disappearance of M. from apartment no . 5 of the Ocean Club is indisputable, this is not the case either with the modus operandi or the circumstances in which it occurred, despite all the measures taken to elucidate them (...).
... the homicide remains a hypothesis since it has not been established by the evidence.
The non-involvement of the defendants, M.'s parents, in any criminal offense seems to stem from objective circumstances, in particular the fact that they were not in the apartment at the time of his disappearance, as well as their behavior, which been normal until and after this disappearance, as follows from the statements made by the witnesses heard, from the analysis of the telephone calls and also from the conclusions of the scientific expert reports, in particular from the Forensic Science Service and the Institute of forensic medecine.
(...)
Even assuming that Gerald and Kate McCann could have been responsible for the death of the child, it remains to be explained how, by where, when and with what means, with whose help and in what place they got rid of the body in the limited amount of time they would have had to do so. To this must be added that their daily routine until May 3 was limited to the perimeter of the Ocean Club and the adjacent beach, that they did not know the surroundings and that they had no friends or acquaintances in Portugal, in addition to the English friends with whom they had traveled (...).
Examinations and analyzes were carried out by two of the most prestigious institutions, which have been accredited for this purpose, the Institute of Forensic Medicine and the British Forensic Science Service laboratory. The final results [do not confirm] ( valorizam positivamente ) the elements collected and do not corroborate the sightings made by the dogs [of the British police].
(...)
No evidence has been obtained which would enable an ordinary man, in the light of criteria of common sense, normality and the general rules of experience, to formulate a lucid, clear, serious and honest conclusion on the circumstances in which the child was taken from the apartment, to state a coherent prognosis and, this is the most dramatic, to determine whether she is alive or dead, the latter hypothesis seeming the most probable. (...) Thus, all things considered and examined, as we have just explained, we order the dismissal of the case concerning [the applicants] since there is no element indicating that they would have committed some offence. »
17 . On the same day, the public prosecutor's office issued an information note to the media explaining that the investigation had been closed without further action but that it could be reopened at any time, ex officio or at the request of any interested party if new pieces of evidence were uncovered and made it possible to launch serious and relevant investigative measures. A digital copy of the investigation file, from which the confidential elements had been removed, was created in order to be made available to any interested person. It appears from the file that the content of this file was disclosed in the press and that it gave rise to numerous debates.
18. The circumstances of Madeleine's disappearance have still not been elucidated to this day, as she remains untraceable.
* THE PUBLICATION AND LAUNCH OF THE BOOK “ MADDIE : A VERDADE DA MENTIRA ” (“ MADDIE, THE TRUTH OF THE LIE ”) AND THE ADAPTATION OF THE BOOK INTO A DOCUMENTARY
* The publication of the book
19 . On July 24, 2008, GA published a book about the case entitled “ Maddie : a verdade da mentira ” (“ Maddie, the truth of the lie ”). This book was published by Guerra e Paz (" GP "). On the cover was affixed the mention “ confidential ” and on the back cover appeared the mentions “ restricted reading ” and “ contains unique revelations ”.
20 . In this work, GA recounted the investigation he had led into the disappearance of Madeleine until he was dismissed, punctuating the story with personal reflections on his work as an investigator, his colleagues, the Algarve and his family.
21 . The foreword to the book reads as follows: [1] :
" Of course, this book responds to the need I felt to defend myself, having been discredited without the institution for which I worked for more than twenty-six years having allowed me to explain myself, either publicly or even within it. I had however formulated this request several times, but it was never heard. I therefore scrupulously respected the rules of the judicial police and refrained from making any comments. But that was not self- evident: I lived this silence to which I was forced as an attack on my dignity. Then I was removed from the investigation. That's when I realized it was time to talk. To do this, I asked for my early retirement, in order to be able to express myself freely.
However, the purpose of this book is more important : to contribute to the discovery of the truth so that justice is finally done in the investigation known as the “ Maddie affair ”. Truth and justice are two values deeply anchored in me which reflect my deep convictions : they have never ceased to guide my work within the institution to which I am proud to have belonged. Even in retirement, they will continue to inspire me and be present in my life.
In no way does this text seek to call into question the work of my colleagues in the judicial police or to compromise the ongoing investigation. I am convinced that the revelation of all the facts could, in the present case, harm the continuation of the investigations. However, the reader will have access to new information, to new interpretations of the facts – always in compliance with the law – and, of course, to relevant questions.
The sole purpose of a criminal investigation is the search for the truth. “ Political correctness ” has no place there. »
22 . The conclusion of the book reads as follows: [2] :
“ It is important to deliver now, on the basis of our deductions, a summary of this case. Reject what is false, remove what cannot be demonstrated with sufficient certainty and validate what has been proven.
1. The abduction thesis is defended from the beginning by Maddie's parents.
2. In their group, only the McCanns claim to have seen the bedroom window open. The others cannot confirm this since they arrived in the apartment after the alert was given.
3. The only person to have seen this window open with the blinds up is Amy, one of the daycare workers at the Ocean Club. She made this observation around 10:20 p.m. / 10:30 p.m., that is to say well after the alert – which does not exclude that the window could have been closed at the time of the criminal action.
4. Testimonies and depositions reveal a large number of inaccuracies, inconsistencies and contradictions. The testimony of [JT] in favor of the thesis of the abduction is probably false : moreover, it gradually lost all its credibility because of the successive modifications made by [JT], modifications which ended up invalidating it. .
5. The body, whose existence was confirmed by the EVRD and CSI dogs but also by the preliminary results of the laboratory analyses, could not be found.
The conclusions that my team and I have reached are as follows :
1. Underage Madeleine McCann died inside Apartment 5-A of the Ocean Club in Vila da Luz on the night of May 3, 2007 ;
2. There was a mock abduction ;
3. Kate Healy and Gerald MacCann are likely involved in hiding their daughter's body ;
4. Death may have occurred following a tragic accident ;
5. There is evidence of parental negligence regarding child care and safety.
(...) We gave the best of ourselves to solve this case. Our conclusions are based on proven facts and indices interpreted with regard to the law. Our job has been to work for justice based on material truth, the only one that must prevail in a universe where lies are erected into truth. »
* The interview given to the daily newspaper Correio da Manhã
23 . On July 24, 2008, when the book was launched, it was sold with the edition of the same day of the tabloid daily Correio da Manhã, which also published an interview given to it by the author and in which the latter reiterated the thesis defended in his book. The relevant passages from this interview are as follows :
" (...)
