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McCanns lost their appeal at the ECHR

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MCCANN ET HEALY v. PORTUGAL

57195/17 | Judgment (Merits and Just Satisfaction) | Court (Fourth Section)| 20/09/2022

Legal summary

Information note on the jurisprudence of the Court nº 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

Dismissal of the civil action brought by the applicants accused of the crime against their missing daughter by a former police officer in charge of the high-profile investigation that was closed for lack of evidence: no violation

Fact - Following the disappearance of Madeleine McCann on the night of 3 May 2007 in southern Portugal, her parents (the applicants) were investigated.

On 2 October 2007, the judiciary police inspector in charge (G.A.) was dismissed.

On 21 July 2008 the public prosecutor's office decided to discontinue the investigation for 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 being involved in their daughter's disappearance. G.A. gave an interview which was published in a newspaper on the day of the book launch. And the book was adapted into a documentary which was broadcast on television and then marketed.

The applicants' proceedings were unsuccessful.

They claim that the national courts failed to fulfil their positive obligation to protect their right to be presumed innocent and their reputation.

In law - Article 8:

1. Applicability - The contested statements made by G.A. in the book, documentary and interview in question concerned the applicants' alleged involvement in the concealment of their daughter's body, the assumption that they had staged an abduction and alleged acts of negligence towards their daughter. These allegations are of sufficient gravity to call for the application of Article 8.

Conclusion: Article 8 applicable.

2. On the merits -

The national courts clearly identified the interests at stake, namely, on the one hand, G.A.'s freedom of expression and freedom of opinion and, on the other, the right to respect for one's reputation, which was linked to the applicants' right to be presumed innocent, and they gave precedence to the rights of the former over those of the latter. They also observed that these rights deserved equal protection and that, in the circumstances, it was necessary to balance them. The question that arises is whether the national courts have balanced these rights in accordance with the criteria established by the Court's case law.

a) Contribution to a debate in the public interest

As the Supreme Court concluded, G.A.'s book, its adaptation into a documentary and his interview in a newspaper concerned a debate of public interest. Indeed, the extensive media coverage of the case was indicative of the interest it had generated both nationally and internationally.

b) The applicants' previous conduct and reputation

The Court understands that, in appealing to the media, the applicants wanted to exploit all possible means to find their daughter. Nevertheless, although they were unknown to the public before the events, their exposure to the media meant that they eventually acquired a certain public profile and entered the public sphere. As a result, they inevitably and consciously exposed themselves to close scrutiny of their actions.

c) The purpose of the book, documentary and interview and the way in which the information was obtained

In the Court's view, the information contained in the book, documentary and interview came from the file on the criminal investigation, which was public.

(d) The content of the statements at issue and their impact

Given the context of the case and as asserted by the domestic courts, the contested statements constituted value judgments based on a sufficient factual basis, namely the material gathered in the course of the investigation and made available to the public. Moreover, this theory had been considered during the criminal investigation and had even led to the applicants' indictment in September 2007.

Moreover, the criminal case had aroused national and international public interest and had given rise to much debate and discussion. As the Court of Appeal and the Supreme Court noted, the statements at issue were unquestionably part of a debate of public interest and G.A.'s thesis was therefore one opinion among others.

The criminal case was dismissed by the public prosecutor. In this connection, if the book had been published before the decision to discontinue the proceedings by the public prosecutor's office, the statements at issue could have undermined the applicants' presumption of innocence, guaranteed by Article 6 § 2 of the Convention, by prejudging the assessment of the facts by the investigating authority. Since these statements were made after the case had been discontinued, the applicants' reputation, guaranteed by Article 8, and the way in which they are perceived by the public are at stake. Public confidence in the functioning of the justice system is also at stake.

Even if the applicants' reputations had been damaged, it was not because of the case put forward by G.A. but because of the suspicions that had been raised against them, which had led to their being placed under investigation and had been the subject of extensive media coverage and debate. This information was widely known to the public, even before the investigation file was made available to the media and the book was published.

The book was published three days after the case was closed, which indicates that it was written and printed while the investigation was still under way. G.A. could have prudently added a note alerting the reader to the outcome of the proceedings. However, the absence of such a note alone does not prove bad faith on the part of G.A. Moreover, the documentary does refer to the fact that the case was closed.

After the book was published, the applicants continued their media activities. In particular, they made a documentary about their daughter's disappearance and continued to give interviews to the international media. While the Court understands that the publication of the book undoubtedly caused the applicants anger, anguish and concern, it does not appear that the book or the broadcast of the documentary had any serious impact on their social relations or on their continuing legitimate search for their daughter.

e) The particular circumstances of the case

The Court can agree with the analysis of the Court of Appeal and the Supreme Court. It is true that the statements at issue were based on G.A.'s in-depth knowledge of the case by virtue of his position. However, they were already known to the public in view of the extensive media coverage of the case and the fact that the investigation file was made available to the media after the investigation was closed. Thus, the disputed elements are merely the expression of G.A.'s interpretation of a media case that had already been widely discussed. Moreover, it does not appear that G.A. was motivated by any personal animosity towards the applicants.

In the particular circumstances of the present case, a conviction would have had a chilling effect on freedom of expression in matters of public interest.

g) Conclusion

The Supreme Court made a careful assessment of the balance to be struck between the applicants' right to privacy and G.A.'s right to freedom of expression, assessing them in the light of the criteria emerging from its case-law and making ample reference to the Court's case-law. In view of the margin of appreciation enjoyed by the national authorities in this case, the Court sees no serious reason to substitute its opinion for that of the Supreme Court. The national authorities did not fail to fulfil their positive obligation to protect the applicants' right to respect for their private life.

Conclusion: no violation (unanimous).

(See also Von Hannover v. Germany no. 2 [GC], 59320/00, 7 February 2004, Legal Summary)

in https://hudoc.echr.coe.int/eng?i=002-13797

Continued..

The full ruling

FOURTH SECTION

MCCANN AND HEALY v. PORTUGAL

(Application No. 57195/17)

JUDGMENT

Article 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 which was shelved for lack of evidence - Matter of public interest - The Applicants, having exposed themselves to the media, entered the public sphere - Judgments of value based on a sufficient factual basis - High-profiled case extensively debated before public access to the investigation and publication of the book - No serious repercussions of the police officer's statements on the applicants - Detailed assessemnt of the interests at stake in accordance with the Court's jurisprudence

STRASBOURG

20 September 2022

This judgment will become final under the conditions set out in Article 44 § 2 of the Convention. It may be subject to formal amendments.

In the case of McCann and Healy v. Portugal,

The European Court of Human Rights (Fourth Section), sitting in a Chamber composed of

Gabriele Kucsko-Stadlmayer, President,

Tim Eicke,

Yonko Grozev,

Armen Harutyunyan,

Pere Pastor Vilanova,

Jolien Schukking,

Ana Maria Guerra Martins, judges, and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 57195/17) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 28 July 2017 by two British nationals, Mr Gerald Patrick McCann and Ms Kate Marie Healy ("the applicants")

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 United Kingdom Government did not wish to avail themselves of that right,

Having deliberated in chambers on 30 August 2022,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The application concerns statements made by Mr Gonçalo Amaral (hereinafter "G.A."), a former criminal investigation police inspector, in a book, in the documentary film based on it and in a newspaper interview about the applicants' alleged involvement in the disappearance of their daughter on 3 May 2007 in southern Portugal. Invoking Articles 6 §§ 1 and 2, 8 and 10 § 2 of the Convention, the applicants alleged that these statements had damaged their reputation, their credit and their right to be presumed innocent. They further submitted that the reasoning contained in the Supreme Court's decisions of 31 January and 21 March 2017 in their civil liability action had also violated their right to the presumption of innocence.

IN FACT

2. The applicants were born in 1968 and reside in Leicestershire, UK. They were represented by R. Correia Afonso, a lawyer in Lisbon.

3. The Portuguese Government ("the Government") were represented by their agent, Ms M.F. da Graça Carvalho, Deputy Attorney General.

I THE BACKGROUND TO THE CASE

A. The disappearance of Madeleine McCann and the investigation into her disappearance

4. At the time of the events, the applicants were on holiday with their three children at the Ocean Club, a seaside resort in the village of Praia da Luz, in southern Portugal.

5. On the night of 3 May 2007 their three-year-old daughter Madeleine disappeared while she was supposed to be sleeping in the apartment occupied by the family.

6. At 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 next day, the Public Prosecutor's Office at the Portimão Court opened an investigation, focusing on the abduction.

8. The investigation was entrusted to Inspector Gonçalo Amaral ("G.A.") of the Portimão Judiciary Police ("PJ"). From the outset, it received considerable national and international media attention.

9. A British national was indicted. The suspicions against him were not confirmed, and his indictment was therefore lifted.

10. Biological traces and blood were detected by British police dogs inside the holiday apartment and in the boot of the car which the applicants had hired a few days after their daughter's disappearance (see paragraph 40 below). As a result, on 7 September 2007, the applicants were charged (constituted arguidos). They were suspected of having hidden their daughter's body after her death, possibly as a result of a domestic accident, in the apartment and of having faked an abduction. The applicants' indictment received unprecedented national and international media coverage.

11. On 9 September 2007, the family returned to the United Kingdom.

12. On 10 September 2007, T.A., Chief Inspector of the PJ, drew up a report. In it he summarised the investigation, concluding in relevant parts of the report:

"(...) according to what has been established, Madeleine died on the night of 3 May 2007 inside the flat (...) occupied by the McCann couple and their three children (...).

(...)

B) There was a simulation of an abduction;

C) In order to make it impossible for the child to die before 10 p.m., a plan was devised to monitor the McCanns' children while they were sleeping;

D) Kate McCann and Gerald McCann are involved in the hiding of the body (concealment of a corpse) of their daughter Madeleine McCann;

E) For the time being, there seems to be no evidence that the child's death was not the result of a tragic accident;

(F) as far as can be ascertained, there is every indication that, in the interests of their defence, the McCanns do not wish to surrender the body immediately and voluntarily; it is highly likely that the body has been moved from the original place where it was deposited (...).

13. In his report, Inspector T.A. asked the public prosecutor's office for the applicants to be heard again and possibly subjected to a restraining order.

14. On 2 October 2007 G.A. was removed from the investigation after making controversial statements to the press.

15. He retired on 1 July 2008.

B Shelving of the investigation

16. On 21 July 2008 the public prosecutor's office issued a decision to shelve the investigation (the archiving of the investigation) 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:

" (...)

In view of the fact that some of the points put forward by the accused and by the witnesses seemed to present some contradictions (...) it was decided to carry out a reconstruction of the facts (...) in order to duly clarify the following details, which are extremely important, at the scene of the events:

(...)

4. What happened between 6.45 p.m. and 7.00 p.m. (...) and the time at which the abduction was reported, i.e. at about 10.00 p.m.;

5. to form the firmest possible conviction about what [J.T.] and the other participants witnessed and, possibly, to remove once and for all any remaining doubts about the innocence of the parents of the missing person.

To this end, (...) the appearance of the witnesses was requested (...).

However, although the national authorities took all the necessary steps to facilitate their travel to Portugal, for reasons unknown to us, after numerous explanations were given to them concerning the necessity and advisability of their travel, they chose not to appear. Therefore, the [reconstruction of the facts] could not take place.

For us, this was especially detrimental to the accused McCann. They have lost the opportunity to prove everything they have been saying since they were indicted, namely their innocence in relation to the fateful event; the investigation has also been hampered, as these facts could not be clarified (...).

While there is no doubt that M. disappeared from flat No. 5 of the Ocean Club, there is no clarity as to the modus operandi or the circumstances in which it occurred, despite all the measures taken to clarify them (...).

(...) homicide remains a hypothesis, bearing in mind that it has not been established by the evidence.

The non-involvement of the accused, M.'s parents, in any criminal offence appears to derive from objective circumstances, in particular the fact that they were not in the flat at the time of her disappearance, as well as their behaviour, which was normal up to and after her disappearance, as is clear from the statements made by the witnesses heard, the analysis of the telephone calls and also from the conclusions of the forensic experts, in particular the Forensic Science Service and the Institute of Forensic Medicine.

(...)

Even if Gerald and Kate McCann could have been responsible for the child's death, it remains to be explained how, where, when and with what means, with whose help and in what place they would have disposed of the body in the limited time they had to do so. To this must be added that their daily routine until 3 May was limited to the perimeter of the Ocean Club and the adjacent beach, that they did not know the surrounding area and that they had no friends or acquaintances in Portugal, apart from the English friends with whom they had travelled (...).

Examinations and analyses were carried out by two of the most prestigious institutions, which were accredited for this purpose, the Institute of Forensic Medicine and the British laboratory Forensic Science Service. The final results [do not] confirm (value positively) the elements collected and do not corroborate the findings of the [British police] dogs.

(...)

No evidence has been obtained that would allow 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 about the circumstances in which the child was removed from the apartment, to state a coherent prognosis and, most dramatically, to determine whether she is alive or dead, the latter being the most likely hypothesis. (...) Thus, all things considered and examined, as we have just stated, we order that the case concerning [the applicants] be shelved, since there is no evidence that they committed any offence.

17. On the same day, the Public Prosecutor's Office issued an information note to the media explaining that the investigation had been shelved, but that it could be reopened at any time, ex officio or at the request of any interested party, if new evidence came to light that would allow for serious and relevant investigative measures to be taken. A digital copy of the investigation files from which confidential material had been removed was created to be made available to any interested person. It appears from the records that the content of these files was disclosed in the press and that it gave rise to numerous debates.

18. The circumstances of Madeleine's disappearance have still not been clarified, as she remains unaccounted for.

THE PUBLICATION AND RELEASE OF THE BOOK «MADDIE: A VERDADE DA MENTIRA» ("MADDIE, THE TRUTH OF THE LIE") AND THE ADAPTATION OF THE BOOK INTO A DOCUMENTARY

A The publication of the book

19. On 24 July 2008, G.A. published a book about the case entitled "Maddie: a verdade da mentira" ("Maddie, the truth of the lie"). The book was published by Guerra e Paz ("G.P."). The cover was marked "confidential" and the back cover was marked "reading only" and "contains unique revelations".

20. In this book, G.A. recounted his investigation into Madeleine's disappearance until he was removed from the case, punctuating the account with personal reflections on his work as an investigator, his colleagues, the Algarve and his family.

21. The foreword to the book reads[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 made this request on several occasions, but it was never heard. I therefore scrupulously respected the rules of the judiciary police and refrained from any comment. But this was not self-evident: I lived this silence, which I was forced to keep, as an attack on my dignity. Then I was removed from the investigation. It was then that I realised that it was time to speak out. To do so, I asked for an early retirement, so that I could 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 case". Truth and justice are two values that are deeply rooted in me and that reflect my deepest convictions: they have always guided 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 judiciary police or to compromise the ongoing investigation. I am convinced that the revelation of all the facts could, in this case, be detrimental to the subsequent investigation. However, the reader will have access to new information, new interpretations of the facts - always in accordance with the law - and, of course, relevant questions.

The only purpose of a criminal investigation is to find the truth. There is no room for political correctness.

22. The conclusion of the book reads[2]:

"It is important to deliver now, on the basis of our deductions, a synthesis of this case. To reject what is false, to remove what cannot be demonstrated with sufficient certainty and to validate what can be proven.

1. The thesis of abduction 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 say this because they arrived in the apartment after the alarm had been given.

3. The only person who saw this window open with the shutters up was Amy, one of the Ocean Club's childcare workers. She made this observation at around 10.20 / 10.30 p.m., i.e. well after the alarm was raised - which does not rule out the window being closed at the time of the actual crime.

4. The testimonies and statements reveal a large number of inaccuracies, inconsistencies and contradictions. [J.T.'s] testimony in favour of the abduction theory is probably false: it has gradually lost all credibility because of the successive changes made by [J.T.], changes which have ultimately invalidated it.

5. The corpse, whose existence was confirmed by the EVRD and CSI dogs and also by the preliminary results of the laboratory analyses, could not be found.

The conclusions reached by my team and me are as follows:

1. The minor Madeleine McCann died inside the apartment 5-A of the Ocean Club in Vila da Luz on the night of 3 May 2007;

2. There was a simulation of an abduction;

3. Kate Healy and Gerald MacCann are probably involved in the concealment of their daughter's body;

4. The death may have been the result of a tragic accident;

5. There is evidence that the parents were negligent in the care and safety of the children.

(...) We have done our best to solve this case. Our conclusions are based on proven facts and evidence interpreted in accordance with the law. Our job has been to work for justice based on the material truth, which is the only truth that should prevail in a world where a lie is elevated as truth.

B The interview given to Correio da Manhã

23. On 24 July 2008, the date of the book's launch, the book was sold together with the same day's edition of the tabloid newspaper Correio da Manhã, which also published an interview with the author in which he reiterated the thesis of the book. The relevant passages from the interview are as follows:

" (...)

Correio da Manhã: Which thesis do you favour as an investigator in the case?

G.A.: The little girl died in the apartment. Everything is in the book, which accurately recounts the investigation up to September: it reflects the opinion of the Portuguese and British police and the public prosecutor. As far as we were concerned, everything had been proven up to that point: the concealment of the corpse, 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?

G.A.: It all starts with a theory of abduction constructed by the parents. And the abduction is based on two elements: one is the testimony given by [J.T.], who said she saw a man passing in front of the apartment with a child in his arms, and the other is the window open when it should have been closed. It was proven that none of this happened.

Correio da Manhã: How was this proven?

G.A.: [J.T.] is not credible: she identifies and recognises different people (...).

(...)

Correio da Manhã: There was a failure to carry out a reconstruction of the facts?

G.A.: It was not done ten or fifteen days after the facts because the village was full of tourists and journalists. We were sure that we could do it later. But it wasn't possible.

Correio da Manhã: With the theory of abduction invalidated, how do you construct the thesis of death?

G.A.: With the elements that existed, we could only end up with an accident, natural death, any cause that did not involve the intervention of a third party. We were in the process of consolidating evidence and making progress in understanding what could have happened to the little girl's corpse.

We were also taking into account the information from the British laboratory on the traces found inside the McCanns' car.

(...)

Correio da Manhã: In your opinion, what happened to the corpse [of the child]?

G.A.: Everything indicated that the corpse, after being in a certain place, was moved from one car to another, some twenty days later. Given the traces found in the car, the little girl must have been transported there.

(...)

Correio da Manhã: Did you feel any political pressure during the investigation?

G.A.: Of inhibition. One of our mistakes was that we didn't move things forward with this group, with everything we had at our disposal: wiretapping, surveillance. We should have recovered the clothes that the little girl was wearing when she left the kindergarten to go home. But then we thought: if we do that, we will say that we suspect the parents. This inhibition was always present.

Correio da Manhã: And that led you to the abduction.

G.A.: We first had to prove that there was no abduction and then we had to focus on those people.

Correio da Manhã: How does the pressure manifest itself?

Immediately on 4 May, in the morning, with a call from the consul saying that the PJ was doing nothing. Then an ambassador. Then an assessor and a British Prime Minister.

(...) "

Last paragraphgs of the ECHR decision - full translation ongoing, starting above

109. The Court notes that the civil proceedings at issue in the present case concerned two claims by the applicants. The first sought to obtain compensation for the alleged damage to their reputation and their right to the presumption of innocence arising, according to them, from the statements made by G.A. about them. The second related to the ban on the sale of the impugned book and documentary (see paragraphs 35-36 and 38 above). The proceedings therefore did not relate to a “criminal charge” against the applicants. It remains to be seen whether it was linked to the criminal proceedings initiated following the disappearance of their daughter in such a way as to bring it within the scope of Article 6 § 2 of the Convention.

110. The Court notes that the civil courts seised were not, in the present case, legally called upon to consider the content of the decision to discontinue proceedings of 21 July 2008 (compare with O.L. v. Finland (dec.) , no. 61110/00, 5 July 2005, and Martínez Aguirre and others v. Spain (dec.), nos. 75529/16 and 79503/16, §§ 46-48, 25 June 2019). If the Supreme Court did so when it was ruling at last instance (see paragraphs 54 and 58 above), it appears that it was in this case in response to the arguments raised by the applicants in their cassation appeal, in which they said they had been declared innocent by this decision (see paragraph 47 above, and compare Daktaras v. Lithuania, no. 42095/98, § 44, ECHR 2000‑X). The Court also notes that the Supreme Court did not carry out an assessment of the evidence which had been added to the file of the criminal investigation (compare with Kaiser v. Austria (dec.), no. 15706/08, § 51 , December 13, 2016) and that it only considered the reason for dismissal in order to base its decisions. In its judgments of January 31, 2017 and March 27, 2017, it then noted that the abandonment of the proceedings against the applicants had resulted not from a finding of innocence but from a lack of conclusive evidence with regard to Article 277 § 2 of the CCP (see paragraph 61 above) and that, in such circumstances, the criminal investigation could be reopened at any time if decisive evidence were collected (see paragraphs 54 and 58 above, see also the principles set out in paragraph 44 of the Bikas v. Germany judgment (no. 76607/13, 25 January 2018)).

111. Moreover, even assuming that Article 6 § 2 of the Convention were applicable to the civil proceedings at issue in the present case, it does not appear that, in its judgments of 31 January 2017 and 27 March 2017 , the Supreme Court made comments suggesting any guilt or even suspicion on the part of the applicants concerning the circumstances of their daughter's disappearance (see, Allen, cited above, § 122 and compare with O'Neill v. the United Kingdom (dec.), no. 14541/15, §§ 37-39, 8 January 2019).

112. Having regard to these findings, the Court concludes that the applicants' complaint based on Article 6 § 2 of the Convention on account of the reasoning of the judgments of the Supreme Court is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and, as such, inadmissible. It must therefore be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Declares the complaint concerning Article 8 of the Convention admissible and the remainder of the application inadmissible;

Holds that there has been no violation of Article 8 of the Convention.

Done in French, then communicated in writing on September 20, 2022, in application of article 77 §§ 2 and 3 of the regulations.

[1] These passages are taken from the French version of the book, entitled Maddie, L'enquête interdite, Bourin Éditeur, May 2009, pages 5-6.

[2] Ibidem, pages 215-216

[3] http://findmadeleine.com/home.html

in: ECHR ruling, 20 september 2022 https://hudoc.echr.coe.int/eng?i=001-219530

Related link: Judgment McCann and Healy v. Portugal - Book by a former police inspector about Madeleine McCann's parents (press release) https://hudoc.echr.coe.int/eng-press?i=003-7438419-10185805

THE END

Our thanks to Joana Morais