McCanns and the ECHR

No sign of this from UK on either the ECHR main or HUDOC sites.

I wonder if it's blocked to UK users?

PeterMac wrote:2 minutes ago.
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2017?

More proof of EU inefficiency.

That is ridiculous.... are they munching chips and mayo sandwiches?

DougD posted upthread that 2022 is likely date of judgement.

isn't ECHR independent of EU?

Ladyinred wrote:DougD posted upthread that 2022 is likely date of judgement.

isn't ECHR independent of EU?

Yes, totally independent.

It may not get as far as judgment.

It FIRST has to get past the filter system to establish whether is it is an arguable case at all.
THEN to establish whether it is already covered by other EHCR judgments, as being so similar in legal terms as to be covered by them.
THEN it has to be established whether the points being argued are within the jurisdiction of the Court itself.  In other words whether this is truly a reasonable analysis of the wording and the subsequent effects of the Portuguese Constitution, OR whether this is simply a couple of people who don't like and can't accept the decision that was made.
THEN they may look at the actual points of the argument

So far as the ECHR is concerned, the Factual legal matter was concluded in the Supreme Court of Portugal some little time ago.

All that remains is an overview of the Human Rights issues raised by the exact wording of the Portuguese Constitution,
and whether the McCann case should be sufficient to cause the Nation to amend it immediately.

As somebody said some time ago – Good luck there !

Let's forget this ridiculous attempt by the McCanns to take Portugal to the ECHR.  It will never happen, they haven't a leg to stand on

After today's Daily Mail abomination, it's past time Portugal took the UK to the ECHR.

How bloody dare they !  I am so angry - even more so that some people appear to believe.

I give up!



I'm in need of another session of social distancing.

Verdi wrote:

Ladyinred wrote:DougD posted upthread that 2022 is likely date of judgement.

isn't ECHR independent of EU?

Yes, totally independent.

Damn... I bet they munch frogs leg sandwiches.

PeterMac sent me this earlier:

The window has just been updated.
There is movement.
This is dated as happening in January, but I check this every couple of days and it is new

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And then enter 57195/17

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Information to applicants:
Proceedings after communication of an application (single phase)
1. Notification of an application to the respondent Government: Following a preliminary examination of the admissibility of your application, the Court has decided, under Rule 54 § 2 (b) of its Rules, that notice of the application should be given to the Government and that it should be invited to submit written observations on the admissibility and merits of the whole case or of one or more of the complaints you have raised.
If a partial decision has been adopted, declaring the remainder of the application inadmissible, the examination of this/these complaint(s) is thereby terminated and you should not file any further submissions on this part of the application.

So Portugal has merely been invited to submit written observations on Admissibility and Merits. I can imagine what they will say!

But the good news is that it has moved out of the pending tray
P

Some time after the 14^th January this screen changed to this from the one just showing the application dated August 2017:


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so we are now the ‘two months’ mentioned in the last sentence. No idea of the reasoning behind this as the full communicated case (in French) has been up the whole time since then.
 
The translated case is on the thread at: 
 
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Not sure where I got it from as I can’t find anything at the moment, but I had a feeling that Portugal had twelve weeks to respond.

This is pretty bad news for the McCanns.

It is normally dead easy for applicants to pass the three main tests as to whether an application is admissible or not, viz.

1. Has the applicant exhausted all domestic remedies? (which basically means: have they taken their case to the highest court in the land? (in this case, Portugal))    

2. Has the applicant brought her/his case to the ECHR within 6 months of their final appeal in the courts (of Portugal)?

3. Does the application fall within one or more of the Articles of the European Convention on Human Rights?

If they can't easily meet these three simple tests without the Portuguese government being invited to comment, it looks like further progress for them may be hanging only by a thread

Tony Bennett wrote:This is pretty bad news for the McCanns.

It is normally dead easy for applicants to pass the three main tests as to whether an application is admissible or not, viz.

1. Has the applicant exhausted all domestic remedies? (which basically means: have they taken their case to the highest court in the land? (in this case, Portugal))    

2. Has the applicant brought her/his case to the ECHR within 6 months of their final appeal in the courts (of Portugal)?

3. Does the application fall within one or more of the Articles of the European Convention on Human Rights?

If they can't easily meet these three simple tests without the Portuguese government being invited to comment, it looks like further progress for them may be hanging only by a thread

....a good day to bury bad news

AN UPDATE.
In their case presented to the ECHR in 2017 the McCanns (& Healy) sought to rely on two main legal precedents.
Axel Springer v Germany, and Larrañaga Arando and others v. Spain.
The latter case had not been decided at that point, (so in legal terms is was NOT a precedent).


And so it has turned out.  Larrañaga Arando et autres c. Espagne was declared Inadmissible in Jun 2019.


The facts in Larrañaga are beyond belief.   Relatives of ETA terrorists were seeking compensation for their deaths at the hands of other terrorist groups. Not surprisingly it was chucked out, but not before lawyers had no doubt added to their own pension funds.


The facts in Axel Springer are curiously relevant to the McCann's case - but not in the direction they would want us to believe.  Axel Springer, a German publishing company was sued for breach of an injunction preventing publication of the details of an arrest at the Munich Beer festival for possession of cocaine of a TV star.  They paid the €1000, and then a further €5000 when they continued to publish the story.


The ECHR held; [forgive me for pasting the lot, because it is important]
firstly, that the published articles concerned the arrest and conviction of an actor, that is public judicial facts that could be considered to present a degree of general interest. Second, the actor was sufficiently well known to qualify as a public figure and, even though the nature of the offence was such that it would probably not have been reported on had it been committed by an ordinary individual, the fact that the actor had been arrested in public and had actively sought the limelight by revealing details about his private life in a number of interviews meant that his legitimate expectation that his private life would be effectively protected was reduced. As regards the third criterion – how the information was obtained and whether it was reliable – the first article about the actor’s arrest had a sufficient factual basis as it was based on information provided by the public prosecutor’s office and the truth of the information related in both articles was not in dispute between the parties. The applicant company had not acted in bad faith: not only had it received confirmation of the information from the prosecuting authorities, there was nothing to suggest that it had not undertaken a balancing exercise between its interest in publishing and the actor’s right to respect for his private life before concluding, in the light of all the circumstances, that it did not have sufficiently strong grounds for believing it should preserve the actor’s anonymity. As to the content, form and consequences of the publications, the articles had not revealed details about the actor’s private life, but had mainly concerned the circumstances of his arrest and the outcome of the criminal proceedings. There had been no disparaging comments or unsubstantiated allegations. The applicant company had not challenged a court injunction prohibiting it from publishing photographs and it had not been shown that the publication of the articles had resulted in serious consequences for the actor. As regards the final criterion, while the sanctions imposed on the applicant company were lenient, they had nevertheless been capable of having a chilling effect and were not justified in the light of the factors referred to above. Accordingly, the restrictions imposed on the company had not been reasonably proportionate to the legitimate aim of protecting the actor’s private life.

Article 41: EUR 17,734.28 in respect of pecuniary damage, corresponding to penalties and costs incurred in the domestic proceedings less the two penalty payments of EUR 5,000.


In my humble opinion there are some strong parallels there with McCann & Healy v Amaral which we recall the McCanns LOST in the Appeal and then the Supreme Court. The same court which said at the time it had considered precedents from the ECHR.


Even more odd are the other two cases apparently relied on by the McCanns.
In von Hannover there was found to be NO violation of s8. when details of Prince Rainier of Monaco's final illness were published
In Bédat v Switzerland the journalist was penalised for publishing details of an incident under active investigation.  The ECHR held: that there was NO violation of his rights under s.10 because the penalty (suspended sentence replaced by fine) had been " imposed for breaching the secrecy of a criminal investigation and its purpose, in the instant case, was to protect the proper functioning of the justice system and the rights of the accused to a fair trial and respect for his private life."


In other words, as the world knows, you are not allowed to publish details of an ACTIVE case.
How this affects the McCanns whose case has been shelved since 2008 is not entirely clear.


Is this their second Wisconsin v Zapata moment ? 


REFS:
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PART 2:
And the last case they reply on for their claim relates to the Presumption of Innocence, under Article 6§2
They cite Allen v. the United Kingdom, but again it seems a strange one to choose.
HELD: the Court noted that the applicant’s acquittal was not an acquittal “on the merits” in a true sense. Although formally an acquittal, the termination of the criminal proceedings in her case shared more of the features present in a case in which criminal proceedings had been discontinued.
No violation of Article 6


Again, strange parallels with the McCann case, but in the wrong direction.
"the termination of the criminal proceedings in her case shared more of the features present in a case in which criminal proceedings had been discontinued" – is almost word for word what the Portuguese Supreme Court added to its judgment when they made the observation about the "shelving' of the case in Portugal.


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I have always believed that McCanns legal defence strategy has its origins in the Scottish mind and to be found only in Scottish Law books.

‘Not proven’ is their hope. 

A verdict between ‘Guilty’ and ‘not Guilty’.

Not to be found in use outside of Scottish Law anywhere else in the world as far as I am aware. ‘There is no proof’ should always be read as ‘there were indications, but not enough evidence’. IMHO.

PeterMac wrote:AN UPDATE.
In their case presented to the ECHR in 2017 the McCanns (& Healy) sought to rely on two main legal precedents.
Axel Springer v Germany, and Larrañaga Arando and others v. Spain.
The latter case had not been decided at that point, (so in legal terms is was NOT a precedent).


And so it has turned out.  Larrañaga Arando et autres c. Espagne was declared Inadmissible in Jun 2019.


The facts in Larrañaga are beyond belief.   Relatives of ETA terrorists were seeking compensation for their deaths at the hands of other terrorist groups. Not surprisingly it was chucked out, but not before lawyers had no doubt added to their own pension funds.


The facts in Axel Springer are curiously relevant to the McCann's case - but not in the direction they would want us to believe.  Axel Springer, a German publishing company was sued for breach of an injunction preventing publication of the details of an arrest at the Munich Beer festival for possession of cocaine of a TV star.  They paid the €1000, and then a further €5000 when they continued to publish the story.


The ECHR held; [forgive me for pasting the lot, because it is important]
firstly, that the published articles concerned the arrest and conviction of an actor, that is public judicial facts that could be considered to present a degree of general interest. Second, the actor was sufficiently well known to qualify as a public figure and, even though the nature of the offence was such that it would probably not have been reported on had it been committed by an ordinary individual, the fact that the actor had been arrested in public and had actively sought the limelight by revealing details about his private life in a number of interviews meant that his legitimate expectation that his private life would be effectively protected was reduced. As regards the third criterion – how the information was obtained and whether it was reliable – the first article about the actor’s arrest had a sufficient factual basis as it was based on information provided by the public prosecutor’s office and the truth of the information related in both articles was not in dispute between the parties. The applicant company had not acted in bad faith: not only had it received confirmation of the information from the prosecuting authorities, there was nothing to suggest that it had not undertaken a balancing exercise between its interest in publishing and the actor’s right to respect for his private life before concluding, in the light of all the circumstances, that it did not have sufficiently strong grounds for believing it should preserve the actor’s anonymity. As to the content, form and consequences of the publications, the articles had not revealed details about the actor’s private life, but had mainly concerned the circumstances of his arrest and the outcome of the criminal proceedings. There had been no disparaging comments or unsubstantiated allegations. The applicant company had not challenged a court injunction prohibiting it from publishing photographs and it had not been shown that the publication of the articles had resulted in serious consequences for the actor. As regards the final criterion, while the sanctions imposed on the applicant company were lenient, they had nevertheless been capable of having a chilling effect and were not justified in the light of the factors referred to above. Accordingly, the restrictions imposed on the company had not been reasonably proportionate to the legitimate aim of protecting the actor’s private life.

Article 41: EUR 17,734.28 in respect of pecuniary damage, corresponding to penalties and costs incurred in the domestic proceedings less the two penalty payments of EUR 5,000.


In my humble opinion there are some strong parallels there with McCann & Healy v Amaral which we recall the McCanns LOST in the Appeal and then the Supreme Court. The same court which said at the time it had considered precedents from the ECHR.


Even more odd are the other two cases apparently relied on by the McCanns.
In von Hannover there was found to be NO violation of s8. when details of Prince Rainier of Monaco's final illness were published
In Bédat v Switzerland the journalist was penalised for publishing details of an incident under active investigation.  The ECHR held: that there was NO violation of his rights under s.10 because the penalty (suspended sentence replaced by fine) had been " imposed for breaching the secrecy of a criminal investigation and its purpose, in the instant case, was to protect the proper functioning of the justice system and the rights of the accused to a fair trial and respect for his private life."


In other words, as the world knows, you are not allowed to publish details of an ACTIVE case.
How this affects the McCanns whose case has been shelved since 2008 is not entirely clear.


Is this their second Wisconsin v Zapata moment ? 


REFS:
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this is interesting...


"had actively sought the limelight by revealing details about his private life in a number of interviews meant that his legitimate expectation that his private life would be effectively protected was reduced."

... which is why I posted in such detail.

The State of Portugal can rely on exactly those precedents in its response.
Dr Amaral's book is covered by von Hannover
The shelving of the case means that Bédat v Switzerland, and Allen v UK are applicable
The McCann's relentless publicity drive, book, TV interviews and Press articles from 'Friend of the family' and spokes-people means Axel Springer is the authority.

It is a very strange list of cases their lawyer has sought to rely on.

(Larrañaga is not a legal precedent, in much the same way that Winconsin v Zapata was not)


The McCanns are both moderately educated people capable of understand how legal precedent works.
Did they not discuss all this before committing to this self-destructive route ?

Looking back to the Supreme court judgment  ([You must be registered and logged in to see this link.])  we find that they quoted several ECHR precedents, and made it clear they were relying on them as guidance.

Smolarz v Poland (17446/07) is mostly concerned with the legal time lag between decisions in the Polish courts.
Thoma v Luxembourg (38432/97 (2001)) related to a journalist who quoted something written by another journalist.  The fact that the original statement was defamatory, and that Thoma did not specifically distance himself from it led to his being made to pay € 1 to each of the Plaintiffs.    The ECHR allowed his appeal as fair reporting.

In Palomo Sanchez et al. v Spain. (ECH 1319, 2011) a Trade Union newspaper published a cartoon and comments about named members who had testified against the Union in a dispute with management. The cartoon was grossly disgusting, vulgar and coarse. The journalists were sacked.
Held:  They lost. There is a clear distinction between criticism and insult. The latter justifies sanctions

And then they used Allen v UK.  I quote the relevant bit in full, so that everyone can all understand.


In the Allen vs UK case, the ECHR emphasised the importance of the presumption after the acquittal or dismissal of the criminal investigation, explaining that this principle prevents suspects or defendants in such cases are treated as if they were in fact responsible for the criminal offences of which they were accused and stressing that without this second level of protection – the level of full respect for acquittal or archiving – the presumption of innocence would remain illusory or merely ideal.
Likewise, the presumption of innocence requires that the absence of guilt that emanates from it is respected, after the acquittal or dismissal, in all legal proceedings of any kind and by any authority that comes into contact with these facts [idem Allen vs United Kingdom].


In this case, the claimants Kate and Gerald McCann never ceased to benefit from this presumption of innocence and from the behaviour imperative that it places on national judicial and justice authorities and on all the civil servants and agents.

This is the ECHR stuff on friendly settlements (link thanks to Textusa).
Looks like it's almost a standard procedure at this stage.


[size=32]Friendly Settlements[/size]

The friendly settlement procedure in the European Court provides the respondent government and the applicant with an opportunity to resolve a dispute. It is an agreement between the parties which is very much like an out of court settlement in national legislation and affords them an opportunity to resolve an issue, usually on payment to the applicant by the respondent Contracting Party of a specified sum of money or on the basis of an undertaking by the respondent Contracting Party to provide appropriate resolution of the issue, or both.

The legal basis for friendly settlements is found in Article 39 of the European Convention on Human Rights, paragraph 1 of which stipulates:

“1. At any stage of the proceedings, the Court may place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the Protocols thereto.”

At the same time as a case is communicated to the respondent government, the European Court will write to the parties to inform them that the Court is at the parties’ disposal for the purpose of securing a friendly settlement and inviting proposals from either party (Rule 62¹§1 of the Rules of Court). The Court will usually set a time limit for any proposals. However, the time limit may be extended (the Court is keen for cases to be resolved and so is likely to grant more time if a settlement is a real possibility).

It is common for the European Court actively to become involved in facilitating settlement in a proactive way, and it may consider striking out an application if an applicant is considered “unreasonably” to have refused friendly settlement proposals. For example, when financial negotiations run into difficulties, the Court may be prepared to suggest what would represent a reasonable sum for settlement of the case. Rule 62 of the Rules of Court permits the Court to take any steps that appear necessary to facilitate settlement, which may include arranging a meeting between the parties (see, e.g., [You must be registered and logged in to see this link.], application no. 31725/96, 20 March 2001). The Court’s practice as regards applications concerning “well-established case-law” is now to be rather more proactive: in order to encourage the resolution of such cases, the Court may of its own motion send settlement proposals to the parties.

Friendly settlement negotiations are confidential and are without prejudice to the parties’ arguments in the contentious proceedings (Article 39§2 of the Convention and Rule 62¹§2 of the Rules of Court). The details of the negotiations cannot be referred to or relied on the substantive proceedings, or in any other contentious proceedings. Breaching this confidentiality could lead to an application being declared inadmissible on grounds of abuse of the rights of application.(See, e.g. [You must be registered and logged in to see this link.], application no. 42165/02 and 466/03, dec. 29 September 2007; [You must be registered and logged in to see this link.], application no. 74153/01, 18 January 2005; Mirolubovs v. Latvia, application no. 798/05, 15 September 2009).

The European Court will be willing to facilitate settlement of cases as this will mean a reduction in the Court’s substantial backlog of cases. If terms are agreed, both parties should write to the Court to confirm the terms of the settlement agreement and request that the case be struck out of the Court’s list of cases. The Court will publish a decision or judgment (if concluded post-admissibility) recording the facts of the case and terms agreed between the parties and formally striking the case out of the list (Articles 39§3). This decision will be transmitted to the Committee of Ministers, which shall supervise the execution of the terms of the friendly settlement as set out in the decision (Articles 39§4). Settlements therefore have a higher “visibility” than was previously the case prior to the implementation of Protocol No. 11.

In accordance with Article 37§1 of the Convention, in striking out applications, the European Court will continue the examination of the case “if respect for human rights as defined in the Convention and protocols thereto so requires”. The factors affecting this decision will include the importance of the issue raised by the case, the terms of settlement proposed by the parties and whether the issue has previously been considered by the Court. Thus, a friendly settlement that had been agreed between the parties in Ukrainian Media Group v. Ukraine was rejected by the Court because of the gravity of the alleged interferences with the applicant company’s right to freedom of expression ([You must be registered and logged in to see this link.], application no. 72713/01, 29 March 2005).

The European Court may also decline to confirm a friendly settlement agreement if, for example, it is not satisfied that the applicant has unambiguously consented to its terms (see, e.g. [You must be registered and logged in to see this link.], application no. 39806/05, 10 July 2007, §§51-53, the case was subsequently referred to the Grand Chamber).

Article 37§2 enables the European Court to restore the case to its list if the terms of friendly settlement are not subsequently complied with (see, e.g. [You must be registered and logged in to see this link.], application no. 13920/04, dec. 7 July 2009).

Thus, the European Court always encourages parties to negotiate a friendly settlement. If no agreement is reached the Court will proceed to examine the merits of the application.

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Thank for that.  An "Out of court settlement" by any other name, well known in English Law.

It is not immediately clear what the McCanns would accept, since 'losing' the case will mean the full costs of the entire legal farrago so far will fall on them, and it would be extraordinary if Portugal as a State decided to waive those costs in some way.
The bottom line is that they are out to destroy Dr Amaral, and giving up at this stage will leave them with nothing to fall back on.
I doubt very much whether Portugal would be interested in negotiating with two Brits who have attempted to trash their Police, their Prosecution services, the Supreme court, and their constitution.

and we also recall that they tried to get the Supreme Court to "reconsider" its own judgment, 

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Thanks to PeterMac for the screenshot 

It's back to normal today, so who knows.

Textusa has posted that 12 weeks is now up, but I think it is the 16 weeks that ends on 6^th May we should be looking at as the request to Portugal was under Rule 54 § 2 (b):

Information to applicants: 
Proceedings after communication of an application (single phase) 

1. Notification of an application to the respondent Government: Following a preliminary examination of the admissibility of your application, the Court has decided, under Rule 54 § 2 (b) of its Rules, that notice of the application should be given to the Government and that it should be invited to submit written observations on the admissibility and merits of the whole case or of one or more of the complaints you have raised. If a partial decision has been adopted, declaring the remainder of the application inadmissible, the examination of this/these complaint(s) is thereby terminated and you should not file any further submissions on this part of the application. 

2. Joint examination of admissibility and merits: As a rule, applications lend themselves to having their admissibility and merits examined at the same time, in accordance with Article 29 § 1 of the Convention and Rule 54A. In such cases, where the Court considers these applications admissible and ready for determination on the merits, it may immediately adopt a judgment under Rule 54A § 2. 

3. Exchange of observations on the admissibility and merits and just satisfaction claims:
The respondent Government are normally requested to submit their observations within sixteen weeks. Once these observations have been received, they will be sent to you for you to submit written observations in reply, usually together with any claim for just satisfaction under Article 41, within a time-limit of six weeks. In cases where the Government have been authorised to submit their observations in their national language (Rule 34 § 4 (a)), they must later provide the Court with a translation into English or French, within a time-limit of four weeks. These time-limits will not normally be extended. 

Should you not wish to avail yourself of the opportunity to reply to the Government’s observations and to submit compensation claims under Article 41, you must inform the Court of this within the same time-limit. Failure to do so may lead the Court to considering that you have lost interest in pursuing your application and to striking your case out of its list of cases (Article 37 § 1 (a) of the Convention). 

With regard to just-satisfaction claims, your particular attention is drawn to Rule 60: failure to submit quantified claims within the time allowed, together with the required supporting documents, will result in the Court either making no award of just satisfaction, or else rejecting the claim in part. This applies even if an applicant has indicated at an earlier stage of the proceedings that he or she seeks just satisfaction. …………………………
 
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Nick Pisa wrote:Technically the case being considered by the court in Strasbourg is against Portugal and Portuguese justice, and not Amaral himself.

If the McCann's lose, they could be forced to pay considerable costs.

There is still no guarantee the case will be heard.

I've always thought this to be a cosmetic exercise - never to get past the doorperson, it's that or lose face

Madeleine McCann's parents await decision in legal battle with Portuguese cop who blamed them for her disappearance - but may have to take cash from search fund to pay costs if they lose

By NICK PISA FOR MAILONLINE

PUBLISHED: 16:14, 9 May 2022 | UPDATED: 16:31, 9 May 2022

Madeleine McCann's parents will find out later this year if they have won their rollercoaster legal battle against a former Portuguese detective who suggested they were responsible for their daughter's disappearance.

Kate and Gerry, both 54, took against Goncalo Amaral, 62, for slurs in his book The Truth of the Lie and they have been locked in a bitter courtroom fight ever since it was published in 2008 – a year after Madeleine went missing.

They are appealing to the European Court of Human Rights in the French city of Strasbourg after Portugal’s highest court threw out their long running libel claim against Amaral, who suggested they were involved in her disappearance.

Initially they had won the first round and an injunction was granted to prevent further sales of the book, which was written by Amaral who was taken off the investigation after a 27 year police career.

He later appealed the decision and after years of litigation – which also at one point involved him paying the McCanns £429,000 in compensation – won the case in 2017.


This was after Portugal’s highest court ruled he was entitled to ‘freedom of expression’ but in a last throw of the dice the McCanns immediately went to the European Court of Human Rights and have been waiting ever since for a decision.

Technically the case being considered by the court in Strasbourg is against Portugal and Portuguese justice, and not Amaral himself.

If the McCann's lose, they could be forced to pay considerable costs.

Madeleine McCann's parents, Kate and Gerry, mark the 15th anniversary of their daughter's disappearance from Portugal at a vigil in their home village of Rothley. They will find out this year if they have won their lengthy legal battle against the former policeman

Madeleine McCann's parents, Kate and Gerry, mark the 15th anniversary of their daughter's disappearance from Portugal at a vigil in their home village of Rothley. They will find out this year if they have won their lengthy legal battle against the former policeman

It may even involve them dipping into their Madeleine’s Fund: Leaving No Stone Unturned account which according to the latest accounts has a balance of £931,500.

Paperwork lodged at the court shows Kate and Gerry are claiming the allegations in his book and a subsequent documentary ‘infringed their right to respect for their private life and their right to presumption of innocence’.

They complained that the Portuguese ruling failed to take into account criteria set out in case law and judges at the Strasbourg court sent out detailed questionnaires to the Portuguese state asking the McCanns for further observations and if an out of court settlement was possible.


A source in Strasbourg said the Portuguese had refused the offer and other documents in the case reveal Amaral made more than £350,000 from the book and DVD, plus another £20,000 from various TV and newspaper interviews.

In their argument the couple detail the pain they have been through since then three-year-old Madeleine disappeared during a family holiday in Praia da Luz on Portugal’s Algarve coast in May 2007.

They go on to describe the anguish they endured after being made suspects or ‘arguidos’ by the Portuguese police a few months after she disappeared.

Lawyers say Amaral’s book ‘incriminated innocent citizens, accused of terrible crimes they never committed’.

It goes on to say they are trying to ‘protect not only their reputation but that of the child as well’.

They also say Amaral’s book was ‘extravagant’ and ‘damaged the good reputation’ of the McCann family.

Last year, Amaral wrote a follow up book called Maddie: Enough Lies in which he said prime suspect Christian Brueckner, named in 2020 by German police, was merely a scapegoat

Last year, Amaral wrote a follow up book called Maddie: Enough Lies in which he said prime suspect Christian Brueckner, named in 2020 by German police, was merely a scapegoat

Amaral argued in his defence that the book’s allegations came from his and his team’s investigation.

Last year Amaral wrote a follow up book called Maddie: Enough Lies in which he said prime suspect Christian Brueckner, who was named in 2020 by German police as the man responsible for her kidnap and ‘murder’ was merely a scapegoat.

He says German investigators have turned convicted rapist and paedophile Brueckner, into a ‘man made Frankenstein’ and he accuses them of a botch job as part of their ‘discredited desire’ to link Brueckner, 45, to the crime.

In the 294 page book he also again repeated his theory the McCanns, from Rothley, Leicestershire were responsible, but they have always steadfastly denied it.

A spokesperson for the European Court of Human Rights told MailOnline: 'The application is scheduled to be examined in the first semester of 2022, a ruling being expected before the end of the summer.’

Officials said lawyers for both parties would be aware of the timings and that no one would have to give evidence in person before the court unless the panel specifically requested it.

Once you get Christmas out of the way and pending the damp squib of 31st December hailing another 'Happy New Year', we are as usual reminded of the catastrophic events of the closing year - in this case 2022, two thousand and twenty two!

What better time than to reflect on the conclusive events of McCann'ite shenanigans, culminating in the decisive judgement rubber stamped for eternity by the European Court of Human Rights back in September.

Naturally, the diehard McCann defence faction springs to action with their wordmongering skills cunningly implying what shouldn't be implied, that's to say perverting the course of justice.

Yet another such example published by the Snaily Wail, in the name of none other than Nick Pisa..

Madeleine McCann's parents LOSE libel legal bid at European court against Portuguese cop who suggested they were involved in the girl's disappearance

   Kate and Gerry McCann lost latest round of legal battle with Goncalo Amaral

    Pair had sued Portuguese ex-cop for libel after he published a book suggesting they were involved in the disappearance of daughter Madeleine in 2007

   Parents won the initial case but ruling was overturned by Portuguese judges in 2017, prompting them to appeal to the European Court of Human Rights 

   European judges today ruled in Amaral's favour, opening door to another appeal 

By Nick Pisa for MailOnline

Published: 09:09, 20 September 2022 | Updated: 16:19, 20 September 2022

Madeleine McCann's parents have lost the latest round in a legal battle against the Portuguese ex-police officer who led a probe into their daughter's disappearance.

Kate and Gerry McCann are attempting to sue Goncalo Amaral for libel for suggesting they were involved in the disappearance - claims he published in a 2008 book and then repeated in media interviews.

They won the initial case but Amaral appealed, and in 2016 Portuguese judges reversed the decision - prompting the McCanns to appeal to the European Court of Human Rights in Strasbourg.

European judges delivered their verdict today and rejected the appeal, giving the McCanns three months to decide whether to appeal again. A source close to the pair told MailOnline they are 'disappointed' and are reviewing their legal options.

A statement posted on the official 'Find Madeleine McCann' Facebook page, the McCanns said: ’We are naturally disappointed with decision of the European Court of Humans Rights announced today. 

'However, much has changed since we started legal proceedings 13 years ago against Mr Amaral, his publisher and broadcaster.

‘We took action for one and only one reason: Mr Amaral’s unfounded claims were having a detrimental impact on the search for Madeleine. 

'If the public believed that we were involved in her disappearance, then people would not be alert for possible clues and may not report relevant information to the relevant law enforcement agencies.

‘The focus is now rightly on the search for Madeleine and her abductor(s). We are grateful for the ongoing work by the British, German and Portuguese police. 

'We hope that with, the help of the public, hard work and diligence we can eventually find those responsible for Madeleine’s disappearance and bring them to justice.’

Lawyers for Kate and Gerry had been arguing that the Portuguese courts breached their right to respect for a private and family life in the way the case was handled.

They also argued their right to a fair hearing had been damaged by Amaral's statements alleging their involvement. 

However, European judges rejected that claim - saying the McCanns' reputation had actually been damaged by Portuguese police naming them as suspects for a short time and not Amaral's comments.

They also dismissed claims that Portuguese authorities had breached their right to privacy, noting the parents had taken part in their own media interviews and participated in a documentary.

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The truth, the whole truth and nothing but the truth..

McCann and Healy v. Portugal (European Court of Human Rights)

Information Note on the Court’s case-law 266
September 2022

McCann and Healy v. Portugal – 57195/17

Judgment 20.9.2022 [Section IV]

Article 8
Positive obligations
Article 8-1
Respect for private life

Refusal of a civil claim by the applicants, accused of criminal conduct in respect of their missing daughter by a former police officer who had been responsible for the extensively publicised investigation, which was discontinued for lack of evidence: no violation

Facts – Following the disappearance of Madeleine McCann in the night of 3 May 2007 in southern Portugal, her parents (the applicants) had been placed under investigation.

On 2 October 2007 the police inspector in charge of the investigation (G.A.) was removed from those duties.

On 21 July 2008 the prosecutor’s office issued a decision to discontinue the investigation on account of a lack of evidence against the applicants.

On 24 July 2008 G.A. published a book, based on the public investigation file, in which he accused the parents of having been involved in their daughter’s disappearance. G.A. gave a newspaper interview which was published on the day that the book was issued. The book was also adapted as a documentary, which was broadcast on television before being made available for commercialisation.

The proceedings brought by the applicants were unsuccessful.

They accused the national courts of having failed in their positive obligation to protect their right to the presumption of innocence and to their reputation.

Law – Article 8:

1. Applicability – The impugned statements made by G.A. in the book, documentary programme and interview concerned the applicants’ alleged involvement in hiding their daughter’s body, based on a theory that they had staged an abduction and on a presumed acts of negligence towards her. These statements were sufficiently serious to attract the application of Article 8.

Conclusion: Article 8 applicable.

2. Merits –

The domestic courts had correctly identified the interests at stake, namely, on the one hand, G.A.’s right to freedom of expression and the right to hold opinions and, on the other, the applicants’ right to respect for their reputation, which was linked to their right to be presumed innocent, and had taken the view that G.A.’s rights should prevail over those of the applicants. They had also observed that these rights deserved equal protection and that, in those circumstances, a balancing exercise had to be carried out. Thus, the question which arose was whether the domestic courts had undertaken this balancing exercise in conformity with the criteria laid down in the Court’s case-law.

(a) Contribution to a debate of general interest

In the Court’s view, as the Supreme Court had concluded, G.A.’s book, the related documentary and the interview given by him to a daily newspaper concerned a debate of public interest. The extensive media coverage given to the case clearly showed the interest that it had aroused both nationally and internationally.

(b) The applicants’ previous conduct and the extent to which they were well known

The Court understood that, in seeking media attention, the applicants had wished to use every possible avenue in order to find their daughter. It remained the case that although they had been unknown to the public before the incident, through their media exposure they had ended up acquiring a certain notoriety and becoming public figures. In consequence, they had inevitably and knowingly laid themselves open to close scrutiny of their every word and deed.

(c) The subject matter of the book, documentary and interview, and how the information was obtained

In the Court’s view, the information contained in the book, documentary and interview had come from the criminal investigation case file, which was in the public domain.

(d) The content of the contested statements and their impact

Having regard to the context of the case and similarly to the findings of the domestic courts, the contested statements constituted value judgments which had a sufficient factual basis, namely the elements which had been gathered during the investigation and brought to the public’s attention. Additionally, this theory had been entertained in the context of the criminal investigation and had even led to the applicants being placed under investigation in September 2007.

Moreover, the criminal case had attracted impassioned public interest both nationally and internationally and had given rise to considerable discussion and controversy. As the court of appeal and the Supreme Court had noted, the disputed statements had undeniably formed part of a debate of public interest, and G.A.’s theory had accordingly been one of several opinions.

The criminal case had been discontinued by the prosecutor’s office. In this connection, had the book been published before the decision by the prosecutor’s office to discontinue the proceedings, the statements in question could potentially have undermined the applicants’ right to be presumed innocent, guaranteed by Article 6 § 2 of the Convention, by prejudging that entity’s assessment of the facts. Given that the statements were in fact made after the case had been discontinued, it had been the applicants’ reputation, guaranteed by Article 8 of the Convention, and the public’s perception of them, which had been at stake. Public confidence in the functioning of the judiciary had also been a relevant issue.

Even supposing that the applicants’ reputation had been damaged, this had not been on account of the hypothesis put forward by G.A., but as a result of the suspicions expressed against them, which had led to their being placed under investigation in the course of the proceedings and had given rise to extensive media attention and much controversy. The information had been thus brought to the public’s attention in some detail even before the investigation file had been made available to the media and the book in question had been published.

The book had been published three days after the proceedings had been discontinued, which implied that it had been written, then printed, while the investigation had still been underway. G.A. could, as a matter of prudence, have added a note informing the reader about the outcome of the proceedings. However, the failure to insert any such note could not, in itself, prove bad faith on his part. Furthermore, the documentary did refer to the fact that the case had been discontinued.

The applicants had continued their media campaign after the book’s publication. In particular, they had cooperated in a documentary programme about their daughter’s disappearance and continued to give interviews to the international media. While the Court understood that the book’s publication had undeniably caused anger, anguish and distress to the applicants, it did not appear that the book, or the broadcasting of the documentary, had had a serious impact on the applicants’ social relations or on their legitimate and ongoing attempts to find their daughter.

(e) The particular circumstances of the case

The Court could agree with the analysis of the court of appeal and the Supreme Court. Admittedly, the statements in question were based on G.A.’s in-depth knowledge of the case file as a result of his role. However, their content had already been known to the public, given the extensive media coverage of the case and the fact that the investigation file had been subsequently made available to the media after the investigation had been closed. Thus, the contested statements were merely the expression of G.A.’s interpretation of a high-profile case which had already been widely discussed. In addition, it did not appear that G.A. had been motivated by personal animosity towards the applicants.

Having regard to the particular circumstances of the present case, a ruling against G.A. would have had a chilling effect in terms of freedom of expression with regard to matters of public interest.

(g) Conclusion

The Supreme Court had carried out a detailed analysis of the balance to be struck between the applicants’ right to respect for their private life and G.A.’s right to freedom of expression, assessing them in the light of the criteria identified in its case-law and referring at length to the Court’s case-law. Having regard to the margin of appreciation afforded to the national authorities in the present case, the Court saw no strong reason to substitute its own view for that of the Supreme Court. The national authorities had not therefore failed in their positive obligation to protect the applicants’ right to respect for their private life.

Conclusion: no violation (unanimously).

[Apologies, I can't locate the original ECHR document at the moment]

Case Law, Strasbourg: McCann and Healy v Portugal, Article 8 claim by McCanns dismissed

Catherine Arnold - November 29, 2022

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In McCann and Healy v. Portugal ([2022] ECHR 725)(in French only), the Fourth Section of the European Court of Human Rights held, unanimously, that the applicants’ Article 8 rights had not been violated by the publication of a book, a documentary programme, and a newspaper interview alleging that the applicants’ daughter had died inside their holiday flat and that the applicants had hidden her dead body and fabricated her abduction.

Background

The applicants, Gerald McCann and Kate Healy, are British nationals. In May 2007, they took their three children on holiday to southern Portugal. While the family was in Portugal, their youngest child, Madeleine McCann, then aged three, disappeared. The prosecutor’s office opened an investigation focusing on Madeleine’s possible abduction. It was led by Inspector Gonçalo Amaral (“G.A.”).

In September 2007, the applicants were placed under investigation. Biological and blood samples had been found inside the family’s flat, as well as in the trunk of a car which the applicants had rented a few days after Madeleine disappeared. It was suspected that Madeleine had died inside the flat, perhaps as the result of an accident, and that her parents had hidden her body and faked an abduction. Shortly after the criminal investigation of the applicants began, on 2 October 2007, Inspector G.A. was removed from the investigation.

Nine months later, on 21 July 2008, the prosecutor’s office discontinued the criminal investigation of the applicants due to lack of evidence. A redacted copy of the dossier from the investigation was made available to the media and its contents were reported in the press.

Three days after the investigation was closed, Inspector G.A. (who had retired on 1 July 2008) published a book about the case. In the book, G.A. he alleged that ‘Madeleine McCann died inside the apartment; an abduction was staged; death could have occurred following a tragic accident; evidence proved negligence on the part of the parents with regard to the care and safety of the children’. G.A. repeated this theory in a newspaper interview. His book was subsequently made into a documentary programme, which first aired on the Portuguese channel TVI in April 2009 and was also sold on DVD.

In May 2009, the applicants sought an injunction to ban the sale of the book and DVDs, as well as the dissemination of all interviews, publications or videos defending the theory set out in G.A.’s book. In a separate action, the applicants also sought the seizure of all profits which G.A. had made from the sale of the book, the DVDs, or his author’s rights. The applicants later brought civil claims against G.A., the book’s publisher, the production company responsible for the documentary, and TVI [35]-[36].

The applicants’ claims were dismissed in the Portuguese courts. Although the tribunal of Lisbon granted the injunction at first instance [39], the decision was overturned by the Lisbon Court of Appeal [44]. In two judgments delivered on 31 January and 21 March 2017, respectively, the Supreme Court upheld the Court of Appeal’s decision, finding that there had been no unlawful interference with the applicants’ right to their reputation and that the principle of the presumption of innocence did not apply in their case [48]-[58].

The applicants lodged an application with the European Court of Human Rights on 28 July 2017. They alleged, first, that the statements made by G.A. had damaged their reputation, their good names, and their right to be presumed innocent and, secondly, that the reasoning contained in the Supreme Court’s judgments of 31 January and 21 March 2017 had breached their right to be presumed innocent.

Judgment

Article 8

The Court considered that G.A.’s contested statements in the book, interview, and documentary were sufficiently serious to engage Article 8 [70]. The Court also determined that the Portuguese civil courts had correctly identified the interests at stake (G.A.’s Article 10 rights and the applicants’ Article 8 rights, which were linked to their right to be presumed innocent), as well as the fact that these interests deserved equal protection [83]. The Court therefore considered that the question it had to answer was whether the domestic courts had undertaken the required balancing exercise in conformity with the Axel Springer criteria [84].

As regards the context in which G.A.’s contested statements were made, the Court agreed with the Supreme Court that the statements concerned a debate of public interest [85]. The Court also considered that the applicants were public figures. This was because, in seeking media attention to aid in their search for their daughter, they had ‘inevitably and knowingly laid themselves open to close scrutiny of their every word and deed’ [88]. The question was whether, in the circumstances, the applicants could rely on a ‘legitimate expectation’ of protection of and respect for their private life. Furthermore, the Court determined that the information contained in the book, interview, and documentary had come from the criminal investigation’s dossier, which had been made available to the media [90].

Turning to the content of the contested statements, the Court noted that the statements were more serious because they were made by G.A., the inspector in charge of the investigation until 2 October 2007 [92]. However, having regard to the statements’ context and to the findings of the domestic courts, the Court held that the statements were ‘value judgments’ which had a ‘sufficient factual basis’ [93]. The Court took the view that G.A.’s theory was based on facts which had been gathered during the criminal investigation into the applicants and which had been brought to the public’s attention then [93]. Furthermore, the Court noted that G.A.’s theory was considered in the investigation’s dossier and, indeed, had led to the opening of the investigation in the first place [93]. Finally, the Court considered that G.A.’s contested statements were clearly part of a debate of public interest about the investigation’s closure, within which G.A.’s theory was one opinion among others [94].

The Court found further that G.A.’s contested statements did not undermine the applicants’ right to be presumed innocent (Article 6(2)) [95]. This was because the statements were made after the closure of the criminal investigation into the applicants on 21 July 2008. Since there was no ongoing investigation against the applicants, only their reputation (protected by Article 8) and the public’s perception of them was at stake.

Turning to consider the consequences of the contested statements, the Court found that, even supposing that the applicants had suffered damage to their reputation, this was not because G.A. had published his theory [96]. Rather, it was because the applicants had been suspected of covering up their daughter’s death and placed under criminal investigation, leading to extensive media coverage and public debate. Indeed, the Court noted that the information contained in the book, the documentary programme, and the interview had been brought to the public’s attention in some detail even before the investigation file was made available to the media in July 2008 [96].

In any event, the Court found that the book, interview, and documentary programme had not had a serious impact on the applicants’ social relations or on their attempts to find their daughter. The Court noted, in particular, that the applicants had been able to continue their media campaign after the book’s publication, including by cooperating in a documentary about their daughter’s disappearance, and had continued to give interviews to the international media [97].

Finally, the Court considered the particular circumstances of the case. The Court had regard to the fact that G.A. was the inspector who had led the criminal investigation of the applicants until 2 October 2007 [98]. However, the Court agreed with the findings of the Lisbon Court of Appeal and the Supreme Court that G.A. had not broken confidentiality by making his statements. The Court found that G.A.’s statements merely expressed his interpretation of a widely debated and high-profile case. Furthermore, the Court considered that there was nothing to suggest that G.A. was motivated by personal animosity against the applicants [99]. The Court also agreed with Portugal’s submission that, in the particular circumstances of the case, a ruling against G.A. would have had a chilling effect on freedom of speech in matters of public interest [100].

In view of these considerations, the Court found that the Supreme Court had carried out a detailed analysis of the balance to be struck between the applicants’ Article 8 rights and G.A.’s Article 10 rights, making ample references to the Court’s case law [101]. In view of the margin of appreciation afforded to national authorities in this area, the Court saw no strong reason to substitute its own view for that of the Supreme Court. As a result, the Court held, unanimously, that there had been no violation of the applicants’ Article 8 rights.

Article 6(2)

In relation to the applicants’ second allegation, the Court held that Article 6(2) was not engaged because the applicants’ civil claims, with which the Supreme Court’s judgments of 31 January and 21t March 2017 were concerned, did not fall within its scope. In the event that Article 6(2) had been engaged, the Court considered that the Supreme Court did not appear to have made comments which implied that the applicants were guilty, or which even suggested suspicions against them. For these reasons, the Court held that the applicants’ complaint under Article 6(2) was manifestly ill-founded within the meaning of Article 35(3) ECHR and, therefore, inadmissible.

Comment

In this judgment the Court reiterated that public figures who are the subject of a news report can expect to receive more restricted protection of their private lives. The fact that the applicants had sought media attention as part of their efforts to find their daughter did not have any bearing on the level of protection of their private lives which they could expect. The Court found that by engaging with the media, the applicants had made themselves public figures and had ‘inevitably and knowingly laid themselves open to close scrutiny of their every word and deed’.

While the Court reiterated the principle set out in, inter alia, Von Hannover (No. 2), that public figures may still rely on a ‘legitimate expectation’ of protection of and respect for their private lives in certain circumstances, the Court did not find that the applicants could do so here. Indeed, the fact that the applicants had previously cooperated with the press and that they continued to engage with the media as part of the search for their daughter after the publication of G.A.’s book were factors which the Court took into account in reaching its decision that their Article 8 rights had not been violated.

In this judgment, the Court also indicated that where a high-profile criminal investigation against a suspect has been closed, publishing a theory that the suspect is guilty is unlikely to violate his or her right to be presumed innocent. In the applicants’ case, the Court found that G.A.’s statements did not undermine their Article 6(2) rights because they were made after the criminal case against them was closed. However, the Court left open the possibility that it would have reached a different conclusion if the investigation had been ongoing. In those circumstances, the contested statements (made by the former head of the investigation and based on information from the investigation file) might have prejudged the prosecutor’s assessment of the facts [95].

Catherine Arnold, is a future trainee at Matrix Chambers with an interest in media and information law.

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A professional perspective..

Case Law, Strasbourg: McCann and Healy v Portugal, Article 8 claim by McCanns dismissed – Catherine Arnold

November 29, 2022

In McCann and Healy v. Portugal ([2022] ECHR 725)(in French only), the Fourth Section of the European Court of Human Rights held, unanimously, that the applicants’ Article 8 rights had not been violated by the publication of a book, a documentary programme, and a newspaper interview alleging that the applicants’ daughter had died inside their holiday flat and that the applicants had hidden her dead body and fabricated her abduction.

Background

The applicants, Gerald McCann and Kate Healy, are British nationals. In May 2007, they took their three children on holiday to southern Portugal. While the family was in Portugal, their youngest child, Madeleine McCann, then aged three, disappeared. The prosecutor’s office opened an investigation focusing on Madeleine’s possible abduction. It was led by Inspector Gonçalo Amaral (“G.A.”).

In September 2007, the applicants were placed under investigation. Biological and blood samples had been found inside the family’s flat, as well as in the trunk of a car which the applicants had rented a few days after Madeleine disappeared. It was suspected that Madeleine had died inside the flat, perhaps as the result of an accident, and that her parents had hidden her body and faked an abduction. Shortly after the criminal investigation of the applicants began, on 2 October 2007, Inspector G.A. was removed from the investigation.

Nine months later, on 21 July 2008, the prosecutor’s office discontinued the criminal investigation of the applicants due to lack of evidence. A redacted copy of the dossier from the investigation was made available to the media and its contents were reported in the press.

Three days after the investigation was closed, Inspector G.A. (who had retired on 1 July 2008) published a book about the case. In the book, G.A. he alleged that ‘Madeleine McCann died inside the apartment; an abduction was staged; death could have occurred following a tragic accident; evidence proved negligence on the part of the parents with regard to the care and safety of the children’. G.A. repeated this theory in a newspaper interview. His book was subsequently made into a documentary programme, which first aired on the Portuguese channel TVI in April 2009 and was also sold on DVD.

In May 2009, the applicants sought an injunction to ban the sale of the book and DVDs, as well as the dissemination of all interviews, publications or videos defending the theory set out in G.A.’s book. In a separate action, the applicants also sought the seizure of all profits which G.A. had made from the sale of the book, the DVDs, or his author’s rights. The applicants later brought civil claims against G.A., the book’s publisher, the production company responsible for the documentary, and TVI [35]-[36].

The applicants’ claims were dismissed in the Portuguese courts. Although the tribunal of Lisbon granted the injunction at first instance [39], the decision was overturned by the Lisbon Court of Appeal [44]. In two judgments delivered on 31 January and 21 March 2017, respectively, the Supreme Court upheld the Court of Appeal’s decision, finding that there had been no unlawful interference with the applicants’ right to their reputation and that the principle of the presumption of innocence did not apply in their case [48]-[58].

The applicants lodged an application with the European Court of Human Rights on 28 July 2017. They alleged, first, that the statements made by G.A. had damaged their reputation, their good names, and their right to be presumed innocent and, secondly, that the reasoning contained in the Supreme Court’s judgments of 31 January and 21 March 2017 had breached their right to be presumed innocent.

Judgment

Article 8

The Court considered that G.A.’s contested statements in the book, interview, and documentary were sufficiently serious to engage Article 8 [70]. The Court also determined that the Portuguese civil courts had correctly identified the interests at stake (G.A.’s Article 10 rights and the applicants’ Article 8 rights, which were linked to their right to be presumed innocent), as well as the fact that these interests deserved equal protection [83]. The Court therefore considered that the question it had to answer was whether the domestic courts had undertaken the required balancing exercise in conformity with the Axel Springer criteria [84].

As regards the context in which G.A.’s contested statements were made, the Court agreed with the Supreme Court that the statements concerned a debate of public interest [85]. The Court also considered that the applicants were public figures. This was because, in seeking media attention to aid in their search for their daughter, they had ‘inevitably and knowingly laid themselves open to close scrutiny of their every word and deed’ [88]. The question was whether, in the circumstances, the applicants could rely on a ‘legitimate expectation’ of protection of and respect for their private life. Furthermore, the Court determined that the information contained in the book, interview, and documentary had come from the criminal investigation’s dossier, which had been made available to the media [90].

Turning to the content of the contested statements, the Court noted that the statements were more serious because they were made by G.A., the inspector in charge of the investigation until 2 October 2007 [92]. However, having regard to the statements’ context and to the findings of the domestic courts, the Court held that the statements were ‘value judgments’ which had a ‘sufficient factual basis’ [93]. The Court took the view that G.A.’s theory was based on facts which had been gathered during the criminal investigation into the applicants and which had been brought to the public’s attention then [93]. Furthermore, the Court noted that G.A.’s theory was considered in the investigation’s dossier and, indeed, had led to the opening of the investigation in the first place [93]. Finally, the Court considered that G.A.’s contested statements were clearly part of a debate of public interest about the investigation’s closure, within which G.A.’s theory was one opinion among others [94].

The Court found further that G.A.’s contested statements did not undermine the applicants’ right to be presumed innocent (Article 6(2)) [95]. This was because the statements were made after the closure of the criminal investigation into the applicants on 21 July 2008. Since there was no ongoing investigation against the applicants, only their reputation (protected by Article 8) and the public’s perception of them was at stake.

Turning to consider the consequences of the contested statements, the Court found that, even supposing that the applicants had suffered damage to their reputation, this was not because G.A. had published his theory [96]. Rather, it was because the applicants had been suspected of covering up their daughter’s death and placed under criminal investigation, leading to extensive media coverage and public debate. Indeed, the Court noted that the information contained in the book, the documentary programme, and the interview had been brought to the public’s attention in some detail even before the investigation file was made available to the media in July 2008 [96].

In any event, the Court found that the book, interview, and documentary programme had not had a serious impact on the applicants’ social relations or on their attempts to find their daughter. The Court noted, in particular, that the applicants had been able to continue their media campaign after the book’s publication, including by cooperating in a documentary about their daughter’s disappearance, and had continued to give interviews to the international media [97].

Finally, the Court considered the particular circumstances of the case. The Court had regard to the fact that G.A. was the inspector who had led the criminal investigation of the applicants until 2 October 2007 [98]. However, the Court agreed with the findings of the Lisbon Court of Appeal and the Supreme Court that G.A. had not broken confidentiality by making his statements. The Court found that G.A.’s statements merely expressed his interpretation of a widely debated and high-profile case. Furthermore, the Court considered that there was nothing to suggest that G.A. was motivated by personal animosity against the applicants [99]. The Court also agreed with Portugal’s submission that, in the particular circumstances of the case, a ruling against G.A. would have had a chilling effect on freedom of speech in matters of public interest [100].

In view of these considerations, the Court found that the Supreme Court had carried out a detailed analysis of the balance to be struck between the applicants’ Article 8 rights and G.A.’s Article 10 rights, making ample references to the Court’s case law [101]. In view of the margin of appreciation afforded to national authorities in this area, the Court saw no strong reason to substitute its own view for that of the Supreme Court. As a result, the Court held, unanimously, that there had been no violation of the applicants’ Article 8 rights.

Article 6(2)

In relation to the applicants’ second allegation, the Court held that Article 6(2) was not engaged because the applicants’ civil claims, with which the Supreme Court’s judgments of 31 January and 21t March 2017 were concerned, did not fall within its scope. In the event that Article 6(2) had been engaged, the Court considered that the Supreme Court did not appear to have made comments which implied that the applicants were guilty, or which even suggested suspicions against them. For these reasons, the Court held that the applicants’ complaint under Article 6(2) was manifestly ill-founded within the meaning of Article 35(3) ECHR and, therefore, inadmissible.

Comment

In this judgment the Court reiterated that public figures who are the subject of a news report can expect to receive more restricted protection of their private lives. The fact that the applicants had sought media attention as part of their efforts to find their daughter did not have any bearing on the level of protection of their private lives which they could expect. The Court found that by engaging with the media, the applicants had made themselves public figures and had ‘inevitably and knowingly laid themselves open to close scrutiny of their every word and deed’.

While the Court reiterated the principle set out in, inter alia, Von Hannover (No. 2), that public figures may still rely on a ‘legitimate expectation’ of protection of and respect for their private lives in certain circumstances, the Court did not find that the applicants could do so here. Indeed, the fact that the applicants had previously cooperated with the press and that they continued to engage with the media as part of the search for their daughter after the publication of G.A.’s book were factors which the Court took into account in reaching its decision that their Article 8 rights had not been violated.

In this judgment, the Court also indicated that where a high-profile criminal investigation against a suspect has been closed, publishing a theory that the suspect is guilty is unlikely to violate his or her right to be presumed innocent. In the applicants’ case, the Court found that G.A.’s statements did not undermine their Article 6(2) rights because they were made after the criminal case against them was closed. However, the Court left open the possibility that it would have reached a different conclusion if the investigation had been ongoing. In those circumstances, the contested statements (made by the former head of the investigation and based on information from the investigation file) might have prejudged the prosecutor’s assessment of the facts.

Catherine Arnold, is a future trainee at Matrix Chambers with an interest in media and information law.

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