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 :
" (...)
Correio da Manhã : which thesis do you favor as an investigator in the case ?
GA : The little girl died in the apartment. Everything is in the book, which faithfully recounts the investigation up to September : it reflects the opinion of the Portuguese and British police as well as that of the prosecution. For us, until that moment, everything was proven : the concealment of the body, the simulation of an abduction and the endangerment of the life of others.
Correio da Manhã : what led you to suspect the McCanns of all these crimes ?
GA : It all starts with an abduction theory constructed by the parents. And the abduction is based on two elements : one is the testimony given by [JT], who says he saw a man walk past the apartment with a child in his arms, the other is the open window while it had to be closed. It has been proven that none of this happened.
Correio da Manhã : how has this been proven?
GA: [JT] is not credible : it identifies and recognizes different people (...).
(...)
Correio da Manhã : did we fail to reconstruct the facts ?
GA : It was not carried out ten or fifteen days after the events because the village was full of tourists and journalists. We were sure we could do it later. But that was not possible.
Correio da Manhã : the theory of the abduction being invalidated, how does one construct the thesis of death ?
GA : With the elements that existed, we could only end up with an accident, natural death, any cause not involving the intervention of a third party. We were consolidating evidence and moving forward to understand what might have happened to the little girl's body.
Also taking into account the information from the British laboratory on the traces found inside the McCanns' car.
(...)
Correio da Manhã : What do you think happened to [the child's] body ?
GA : Everything indicated that the body, after being in a specific place, had been moved from one car to another, twenty and some days later. Given the traces found in the car, the little girl had to be transported there.
(...)
Correio da Manhã : did you feel any political pressure during the investigation ?
GA : Inhibition. One of our mistakes was not having moved forward with this group, with everything that was at our disposal: tapping, monitoring. It would have been necessary to recover the clothes that the little girl wore when she left the kindergarten to go home. But there we thought : if we do it, we will say that we suspect the parents. This inhibition was present all the time.
Correio da Manhã : and that led you to the abduction.
GA : We first had to prove that there had not been an abduction to then focus on these people.
Correio da Manhã : how does the pressure manifest itself ?
Immediately on May 4, in the morning, with a call from the consul saying that the PJ was doing nothing. After an ambassador. Then an assessor ( assessor ) and an English Prime Minister.
(...) »
- The adaptation of the book into a documentary and its distribution
24 . The book was adapted into a documentary with the same title. It was produced by the production company Valentim de Carvalho (" VC ") and released in DVD format from the end of April 2009.
25 . The first part of the documentary aired on TVI channel on April 13, 2009. The second part aired on May 12 , 2009. Prior to the airing of the documentary, TVI channel released the following statement :
“ The following program is a documentary based on the book by Gonçalo Amaral, ex-PJ inspector who investigated the disappearance of Madeleine in the Algarve. His version of events is dismissed by Maddie's parents, who continue to say it is a kidnapping case.
The criminal procedure conducted by the Portuguese authorities ended with a discontinuation of the investigation, a decision contested by Gonçalo Amaral.
The broadcast of this documentary does not claim to designate those responsible, this task being the responsibility of justice, but seeks to shed light on a case that has remained a mystery for more than two years, and to provide elements to allow public opinion public to understand it. »
26. In this documentary, GA appeared as the narrator. He reiterated the thesis defended in his book, opening the documentary with the following introduction:
“ My name is Gonçalo Amaral, I was a judicial police investigator for 27 years. I coordinated the investigation into the disappearance of Madeleine McCann which occurred on May 3 , 2007. For the next 50 minutes, I will prove that the child was not abducted and that she died in the vacation apartment from Praia da Luz. Find out the whole truth about what happened that day. A death that many people want to hide. »
27 . He concluded the documentary thus :
" From what I know, Madeleine McCann died in apartment 5-A on May 3, 2007. I'm sure the truth about what happened (that Madeleine died in the apartment) will be one day revealed. The investigation was abruptly interrupted and there was a political and hasty classification without any follow-up. There are people who hide the truth but sooner or later the veneer will crack and the revelations will arise. Justice will then be done to [M.] (...) ”.
28. The DVD was sold with the April 24, 2009 edition of the Correio da Manhã newspaper .
- THE CIVIL PROCEEDINGS BROUGHT BY THE APPLICANTS
- Requests for precautionary measures ( medidas cautelares )
- The request for precautionary measures to ban books and documentaries
29 . On an unspecified date in May 2009, the applicants, on their own behalf and on behalf of their children, lodged an application with the Lisbon Court against GA and the GP editions, the VC company and the television channel TVI, with a view to the application of precautionary measures ( medidas cautelares ), demanding the immediate withdrawal from points of sale of GA's book and the documentary sold in DVD format, the prohibition of any reprinting or reproduction, the prohibition of any assignment of author on the book or documentary, as well as the prohibition of any dissemination of opinions, interviews or any other publication or video defending the thesis supported by GA in his book.
30. In a judgment of 18 February 2010, the Lisbon court granted the applicants' request.
31. The defendants appealed against the judgment.
32 . In a judgment of October 14, 2010, the Lisbon Court of Appeal quashed the judgment of the Lisbon Court of February 18, 2010. It found that GA's book revealed the author's opinion about the investigation by relating the facts that appeared in the investigation file and without bringing any new elements. It held that the applicants could not invoke a breach of their right to respect for private life since, admittedly for the legitimate purpose of finding their daughter, they had exposed the case in the public square, thus opening the way to expression of opinions and criticisms.
- The request for precautionary measures for the seizure of GA's property
33. On an unspecified date, on their own behalf and on behalf of their children, the applicants requested the Lisbon Court to order the provisional seizure ( arresto ) of any profit made by GA on the sale of the book, DVD or on any transfer of rights as well as the seizure of GA's bank accounts, of his shares in a company, of one third of his salary as manager of this company and of one third of his pension for the purpose of guaranteeing the payment of the compensation they were going to claim in the context of a civil liability action brought against GA for damage to their credit and reputation within the meaning of Article 484 of the Civil Code.
34. In a judgment of 16 October 2009, the Lisbon court granted the applicants' request. The parties did not indicate whether GA appealed the judgment and, if so, what the outcome of that appeal was.
- Civil actions
- The introduction of actions and their joining
35 . On 24 July 2009 the applicants, on their own behalf and on behalf of their children, sued GA, the companies GP and VC and the TVI channel before the Lisbon court in the context of a civil liability action. They claimed 1,200,000 EUR in damages in compensation for the damage to their reputation and their credit ( bom nome ) which, according to them, resulted from the allusions made to them by GA in his book, in the documentary which was the subject of it. adaptation and in the interview given to the daily Correio da Manhã (see paragraphs 19, 23 and 24 above).
36 . On October 6, 2009, they also brought a civil action against the same defendants before the Lisbon court with a view to the definitive application of the measures they had requested on a provisional basis in order to obtain, in particular, the banning of the disputed book and documentary ( paragraph 29 above).
37. The defendants challenged the actions brought against them.
38 . By a decision of the Lisbon Court of July 12, 2010, the two civil actions were joined.
- The judgment of the Lisbon court of April 27, 2015
39. In a judgment of 27 April 2015, ruling as a single judge, the Lisbon Court partially upheld the claims filed by the applicants on their behalf (see paragraphs 35-36 above) and dismissed all the claims they filed on behalf of their children. The court ordered GA to pay each of the applicants compensation in the amount of EUR 250,000 plus interest, pursuant to Article 484 of the Civil Code (“ CC ”) (see paragraph 65 below), judging that the book of which he was the author, his adaptation into a documentary and the statements he made during the interview he gave to the daily newspaper Correio da Manhã on 24 July 2008 (see paragraphs 19, 23 and 24 above) had damaged the credit and reputation of the applicants. The court also prohibited the sale of the book and the documentary.
40 . With regard to the facts, referring to the evidence that had been submitted by the parties, the Lisbon court found the following established :
" (...)
6. British Police dogs ' Eddie ' and ' Keela ' detected scent marks of human blood and corpse inside Ocean Club Apartment 5-A.
7. British police dogs ' Eddie ' and ' Keela ' detected odor marks of human blood and cadaver inside the vehicle rented by the applicants ... after Madeleine disappeared.
(...)
28. The book was published, by other publishers, in the following countries : in Spain, in September 2008 with possible marketing in Spanish in Latin American countries ; in Denmark, in November 2008, with possible marketing in the Nordic countries ; in Italy, in December 2008, with marketing in Italian worldwide ; in the Netherlands, in April 2009, with worldwide marketing in Dutch; in France, in May 2009, with worldwide marketing in French ; in Germany in June 2009, with marketing in Austria and Switzerland.
(...)
33. The defendant [GA] received from the sale of the book ..., in 2008 and 2009, the sum of 342,111.86 euros.
(...)
53. 75,000 copies of the DVD were released.
54. 63,369 copies remained unsold and were later destroyed.
(...)
62. The defendant [GA] received, in 2008, 40,000 euros from the sale of the DVD.
(...)
67. The applicants ... reported the disappearance of their daughter to the press.
68. The applicants ... gave an interview to the American television program " Oprah ", presented by Oprah Winfrey, during which they discussed new testimonies, reconstructions and composite portraits.
69. The Oprah interview was broadcast worldwide (...).
70. The interview (...) was broadcast in Portugal on the SIC channel on 9 and 12 May 2009.
71. The applicants (...), in collaboration with the British television channel “ Channel 4 ”, produced a documentary on the disappearance of their daughter, entitled “ Still missing Madeleine ”, lasting 60 minutes.
(...)
74. The documentary (...) was broadcast on the SIC television channel on 12 May 2009.
(...)
76. In Portugal and throughout the world, the disappearance of Madeleine McCann, the investigation carried out to find her and to elucidate the facts, its evolution and its vicissitudes, such as the indictment of the applicants (...) or the relinquishment of the defendant [GA] of the investigations undertaken under his coordination, aroused enormous public interest.
77. The plaintiffs (...) appealed, through the Madeleine Fund [3] , communication companies and spokespersons.
(...)
80. The facts relating to the criminal investigation into the disappearance of Madeleine McCann to which the defendant [GA] refers in the book, in the interview with the daily newspaper Correio da Manhã and in the documentary are, for the most part, events that occurred and were documented in this investigation.
81. Faced with the statements made by the defendant [GA] in his book, in his documentary and in his interview with the daily newspaper Correio da Manhã , the plaintiffs felt anger, despair, anguish and concern ; they suffered from insomnia and lost their appetite.
82. They feel ill at ease knowing that they are considered, by those who believe in defendant [GA]'s case, (...), to be responsible for the concealment of the body [of their daughter] and like those who faked her kidnapping. »
41 . On the merits, the court observed that it was called upon to rule on a conflict between the applicants' right to protection of their credit and reputation, on the one hand, and GA's right to freedom of expression. under the aspect of freedom of opinion, on the other hand, noting that these rights were respectively guaranteed by Articles 8 and 10 of the Convention. He noted that the case also raised the question of the presumption of innocence which was guaranteed by Article 6 § 2 of the Convention and was closely linked to the reputation of the applicants. According to the court, these rights deserved equal protection. He observed that the Court's case law nevertheless seemed to uphold freedom of expression and freedom of the press, accepting few restrictions when it came to matters of public interest. In this regard, he cited in particular the Thoma v. Luxembourg (no
. 38432/97 , ECHR 2001-III) and Palomo Sánchez and others v. Spain ([GC], nos
. 28955/06 and 3 others, ECHR 2011). Regarding the presumption of innocence, the court noted that Allen v. United Kingdom ([GC], no
. 25424/09 , ECHR 2013) had underlined its importance after an acquittal or the discontinuance of proceedings.
42 . The court considered that, in the present case, GA's right to freedom of expression had to give way to the rights of the applicants. For that, he based himself on the fact that GA was not a simple commentator of miscellaneous facts but that he had precisely directed the criminal investigation which had been carried out against the applicants. He considered that, even though he had been retired since July 1 , 2008, GA was therefore bound by a duty of confidentiality and professional secrecy ( dever de sigilo ) in the light of Article 12 of the Organic Law on the Judicial Police and Article 74 § 1 of the Statute of Retired Civil Service Agents (see paragraphs 66-67 below). He concludes from this that his conduct was unlawful under Article 483 CC (see paragraph 65 below).
- The appeals filed by the defendants and the judgment of the Lisbon Court of Appeal of April 14, 2016
43. GA, the GP editions and the VC company appealed against the judgment to the Lisbon Court of Appeal. In their briefs on appeal, they all argued that the judgment of the Lisbon court infringed freedom of expression.
44 . In a judgment of April 14, 2016, ruling in a panel of three judges, the Lisbon Court of Appeal quashed the judgment of the Lisbon Court. In its judgment, it considered that GA's right to freedom of expression and opinion prevailed in the present case over the applicants' rights. In its relevant parts in this case, its reasoning read as follows :
" ... the thesis that the child died as a result of an accident and this accident was concealed by the parents who disseminated, to elude it, the hypothesis of an abduction, is not not a novelty. Indeed, this thesis also appears in the report [of the PJ of September 10, 2007] which determined the indictment [of the applicants]. However, with the availability of the copy of the investigation report, [this thesis] was made public by the media (...).
As understood in the judgment rendered by this Section in the context of the proceedings relating to the interim measure attached to this file (...), given that the institution to which he was linked did not enabled the Appellant to respond to the attacks made on his talent and his reputation in his capacity as an agent of the judicial police, it must be considered that the publication of the book in question, in which the author set out his view of the facts, bears witness to legitimate exercise of freedom of opinion by the person concerned.
Moreover, it appears from the facts that have been established that ... it was the [applicants] themselves who ... increased the number of interviews and appearances in national and international press organs. Thus, it is they themselves who have restricted their right to respect for their private life.
Therefore, by acting as they did, they allowed everyone to form their own opinion on the case, which contradicts their thesis (...).
Furthermore, it is not clear how the right of the [applicants] to benefit after their indictment from procedural safeguards – including the right to a fair investigation and the right to liberty – could have been affected by the content of a book which, essentially, describes and interprets the facts appearing in the file of the investigation and whose content has been made public.
Even if it has been decided that the facts were not sufficient to lead to an indictment, it is not prohibited for these same facts to be the subject of a different assessment, in particular in the context of a literary work. .
Thus (...) we consider that the publication in question is lawful. »
45 . With regard to the duty of confidentiality to which, according to the Lisbon Court, GA was bound, the Lisbon Court of Appeal concludes its judgment as follows :
“ ... regardless of the reasons invoked by the Appellant to justify the publication, it is difficult to understand how a civil servant, who is moreover retired, could remain bound by the duty of discretion and the duty to maintain the secrecy of the instruction, which would restrict his freedom of opinion, with respect to the interpretation of facts which have already been made public by the judicial authority and which have already been amply debated (moreover, to a large extent, at the initiative of the [applicants] themselves) in national and international press organs.
(...) ”.
- The appeal in cassation filed by the applicants and the judgments of the Supreme Court
has) The appeal in cassation of the applicants
46. The applicants appealed on points of law. In their appeal, they repeated that the book, the documentary and the statements made by GA in the context of the interview he had given to the daily Correio da Manhã had damaged their reputation, their credit, their image and their right to the presumption of innocence. In addition, they maintained that GA made no reference to the dismissal of the case at the internal level, which, according to them, called into question the work of justice.
47 . The applicants argued that all the actions they had taken to find their daughter were legitimate and that this fact could not be held against them. On this point, the relevant parts of their appeal in this case read as follows :
" (...)
d. In addition, the honor, credit and image of any innocent and declared innocent citizen are tarnished by communication media that intend, and succeed, not to respect and thus weaken a decision rendered by state magistrates. , sole holders of the penal action, by representing the targeted citizen as a suspect of having committed crimes (...)
(...)
I. In Portugal, in view of the Constitution, the Universal Declaration of Human Rights, the European Convention on Human Rights and the Convention on the Rights of the Child, it is not permitted to write, disseminate by all means and comment with all possible nuances, a thesis that incriminates innocent citizens and who have never been accused of the crimes it exposes. It is therefore not up to the State and the courts to protect those who act in this way, but to protect the victims of such attacks.
Mr. Precisely because they are not only absolutely innocent but also because they have the right to benefit from the presumption of innocence by acting and behaving like any citizen who has not been indicted, all that the parents of a missing child do, legally, for themselves, to find their daughter or to find out on her behalf what has happened to her, should be welcomed by Portugal not as a voluntary restriction of their rights personal fundamentals of parents, but as an activity protected by domestic and international law in which cannot fall within the admissible criticism of this behavior, the affirmation and dissemination urbi et orbi of the thesis proclaimed by the defendants on appeal ( recorridos ) .
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b) The judgment of the Supreme Court of January 31, 2017
48 . In a judgment of January 31, 2017, the Supreme Court upheld the judgment of the Lisbon Court of Appeal. In its judgment, the Supreme Court considered that the central question in this case was how to resolve the conflict between the right to freedom of expression, freedom to inform and freedom of the press in the of GA and the companies GP and VC, on the one hand, and the right to protection of the reputation and credit of the claimants, on the other hand. Taking into account the case law of the Court,
49 . The Supreme Court recalled the Court's case law on freedom of expression and stressed that it was up to the national judge to interpret and apply the Convention and that it was important for national judges to follow the inter- judiciary with rigor. In particular, it considered the following :
“ ...we note that the ECHR tends to resolve questions relating to interferences with freedom of expression taking into account their exceptional character and the central importance of this freedom in a democratic society. On the other hand, at the level of the national jurisdictions, there is a tendency to relegate freedom of expression to second place by giving precedence to the right to honour.
This is what has earned Portugal certain convictions by the ECHR for violation of Article 10 of the Convention (see for example the cases of Lopes Gomes da Silva v. Portugal (2000), Urbino Rodrigues v. Portugal (2005), Roseiro Bento v. Portugal (2005), Almeida Azevedo v. Portugal (2008), Medipress-Sociedade Jornalistica, Lda v. Portugal (2016) and Tavares de Almeida Fernandes e Almeida Fernandes v. Portugal (2017).
It should be noted, in this respect, that in the event of a conviction of the Portuguese State for violation of the ECHR, an appeal for review may be brought for the purposes of reviewing the decision in question (...). »
50 . The Supreme Court challenged the judgment of the Lisbon court insofar as it had settled the conflict of interests which was at stake on the basis of the applicants' right to the presumption of innocence and the right of discretion to which GA was bound ( paragraphs 41-42 above), and she gave several reasons. Firstly, the contentious assertions made by GA were not new since they were exposed in the PJ report of September 10 , 2007 which appeared in the investigation file, to which the press had had access. ; these assertions, which had thus already been widely commented on and debated, therefore constituted a subject of general interest. Secondly, the applicants, who had deliberately exposed themselves in the media, had to be considered as “ public persons ”, who were therefore inevitably subject to closer scrutiny of their behavior and opinions. In this regard, the judgment of the Supreme Court, in its relevant parts in this case, read as follows :
“ ... it can be said, in the present case, that we are in a case which concerns persons of a certain public character given that the appellants intervene publicly to influence a debate of public interest (... ).
They are also people who have voluntarily become public figures and who have agreed to bear the vulnerability that comes with an exhibition in the public square, as a consequence of the role they have sought to take on in the public debate in which they decided to intervene.
Furthermore, as stated in the judgment under appeal and as follows from the facts that have been established, it was the Appellants themselves who, because they had easy access to them, multiplied the interviews and interventions in national and international media outlets. They thus offered everyone the opportunity to form their own opinion on the case, which contradicts their thesis.
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As we have already indicated, the ECHR has moved towards stronger protection of freedom of expression when the person targeted by imputations of facts or value judgments is a public person and the question concerns a subject of public interest.
When the targeted person is a public person and not a private individual, he is inevitably and consciously more exposed to more careful surveillance of his actions and opinions, both by journalists and by citizens as a whole ; it must therefore show greater tolerance with regard to this control.
This is all the more true when it is the person concerned who makes public statements likely to be criticized.
This does not mean that the public person is not entitled to the protection of his reputation, even outside his private life.
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