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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 contentious 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 files of the criminal investigation, which was public.

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

Given the context of the case and as asserted by the domestic courts, the disputed statements constituted judgments of value 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 in question 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 regard, 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 led to them 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 files were 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 in dispute 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 light of the extensive media coverage of the case and the fact that the investigation files were 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 light of the criteria emerging from its case-law and making ample reference to the Court's jurisprudence. IConsidering 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: Legal Summary of the Case at the ECHR site

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 assessment 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,

In regards 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 image 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.
(...) "

C The adaptation of the book into a documentary and its distribution

24. The book was adapted into a documentary of the same title. It was produced by the production company Valentim de Carvalho ("V.C.") and released on DVD at the end of April 2009.

25. The first part of the documentary was broadcast on TVI on 13 April 2009. The second part was broadcast on 12 May 2009. Before the documentary was broadcast, TVI issued the following statement:

"The following programme is a documentary based on the book by Gonçalo Amaral, a former PJ inspector who investigated the disappearance of Madeleine in the Algarve. His version of events is rejected by Maddie's parents, who continue to say that it is a case of abduction.
The criminal proceedings conducted by the Portuguese authorities ended with the investigation being shelved, a decision contested by Gonçalo Amaral.
The broadcasting of this documentary does not claim to point the finger of blame, which is the responsibility of the courts, but seeks to shed light on a case that has remained a mystery for more than two years, and to provide elements to enable the public opinion to understand it."
26. In this documentary, G.A. appeared as the narrator. He reiterated the thesis of his book, opening the documentary with the following introduction:

"My name is Gonçalo Amaral, I was an investigator of the judiciary police for 27 years. I coordinated the investigation into the disappearance of Madeleine McCann on the 3rd of May 2007. For the next 50 minutes I will prove that the child was not abducted and that she died in the holiday apartment in Praia da Luz. Find out the whole truth about what happened that day. A death that many people want to cover up."

27. He concluded the documentary as follows:

"As far as I know, Madeleine McCann died in the apartment 5-A on the 3rd of May 2007. I am sure that the truth about what happened (that Madeleine died in the flat) will come out one day. The investigation was abruptly interrupted and there was a hasty and political shelving. There are people who cover up the truth but sooner or later the veneer will crack and the revelations will come out. Justice will then be done to [M.] (...)".

28. The DVD was sold with the 24 April 2009 edition of Correio da Manhã newspaper.

III THE CIVIL PROCEEDINGS BROUGHT BY THE APPLICANTS

A The requests for provisional measures (interim measures)

1 The request for interim measures to ban the book and documentary

29. On an unspecified date in May 2009, the claimants, on their behalf and on behalf of their children, applied to the Lisbon court against G.A. and the G.P. publishing house, the company V.C. and the television channel TVI for interim measures (precautionary measures), demanding the immediate withdrawal from points of sale of G.A.'s book and the documentary sold in DVD format, the prohibition of any reprinting or reproduction, the prohibition of any transfer of copyright of the book or documentary, and the prohibition of any dissemination of opinions, interviews or any other publication or video defending the thesis put forward by G.A. in his book.

30. By a judgment of 18 February 2010, the Lisbon Court granted the applicants' request.

31. The defendants appealed against the judgment.

32. By a judgment of 14 October 2010, the Lisbon Court of Appeals annulled the judgment of the Lisbon Court of 18 February 2010. It considered that G.A.'s book revealed the author's opinion about the investigation by relating the facts that were in the investigation file and without providing any new elements. It held that the applicants could not invoke an infringement of their right to privacy since, albeit for the legitimate purpose of finding their daughter, they had exposed the case in the public arena, thus opening the way for the expression of opinions and criticism.

2 The application for interim measures to seize G.A.'s property

33. On an unspecified date, on their own behalf and on behalf of their children, the applicants asked the Lisbon court to order the provisional seizure (asset seizure ) of any profits made by G.A. from the sale of the book, the DVD or any transfer of rights, and the seizure of G.A.'s bank accounts, his shares in a company, one third of his salary as manager of that company and one third of his pension in order to guarantee the payment of the compensation they were going to claim in a civil liability action brought against G.A. for damage to their image and reputation within the meaning of Article 484 of the Civil Code.

34. By a judgment of 16 October 2009, the Lisbon Court granted the claimants' request. The parties did not indicate whether G.A. had appealed against the judgment and, if so, what the outcome of that appeal had been.

B The Civil actions

1 The filing of actions and their joinder

35. On 24 July 2009 the applicants, on their own behalf and on behalf of their children, summoned G.A., the companies G.P. and V.C. and the TVI channel before the Lisbon court in a civil liability action. They claimed EUR 1,200,000 in damages for the damage to their reputation and image (good name) which, according to them, resulted from the references made to them by G.A. in his book, in the documentary based on it and in the interview given to the daily Correio da Manhã (see paragraphs 19, 23 and 24 above).

36. On 6 October 2009 they also brought a civil action against the same defendants before the Lisbon court in order to make definitive the application of the measures they had provisionally requested, in particular the prohibition of the book and the documentary in question (see paragraph 29 above).

37. The defendants contested the actions brought against them.

38. By a decision of the Lisbon Court of 12 July 2010, the two civil actions were joined.

2 The Lisbon Court judgment of 27 April 2015

39. By a judgment of 27 April 2015, sitting as a single judge, the Lisbon Court partially upheld the claims brought by the applicants on their own behalf (see paragraphs 35-36 above) and dismissed all the claims they had brought on behalf of their children. The court ordered G.A. to pay each of the applicants compensation of EUR 250,000 plus interest under Article 484 of the Civil Code ("C.C.") (see paragraph 65 below), holding that the book he had written, its adaptation into a documentary and the statements he had made in an interview with the daily Correio da Manhã on 24 July 2008 (see paragraphs 19, 23 and 24 above) had damaged the applicants' image and reputation. The Court also prohibited the sale of the book and the documentary.

40. As to the facts, referring to the evidence submitted by the parties, the Lisbon Court found the following to be established:

" (...)
6. The British police dogs "Eddie" and "Keela" detected human blood and cadaver scent marks inside apartment 5-A of the Ocean Club.
7. The British police dogs "Eddie" and "Keela" detected human blood and cadaver scent marks inside the vehicle rented by the applicants (...) after Madeleine disappeared.
(...)
28. The book has been published, by other publishers, in the following countries: in Spain, in September 2008, with possible marketing in Spanish in Latin American countries; in Denmark, in November 2008, with possible marketing in the Nordic countries; in Italy, in December 2008, with marketing in Italian worldwide; in the Netherlands, in April 2009, with marketing in Dutch worldwide; in France, in May 2009, with marketing in French worldwide; in Germany, in June 2009, with marketing in Austria and in Switzerland
(...)
33. The defendant [G.A.] received from the sale of the book (...), in 2008 and 2009, the sum of 342,111.86 euros.
(...)
53. 75,000 copies of the DVD were sold.
54. 63,369 copies remained unsold and were subsequently destroyed.
(...)
62. The defendant [G.A.] received EUR 40,000 from the sale of the DVD in 2008.
(...)
67. The plaintiffs (...) reported their daughter's disappearance to the press.
68. The applicants (...) gave an interview to the American television programme 'Oprah', presented by Oprah Winfrey, during which they mentioned new testimonies, reconstructions and sketches.
69. The "Oprah" interview was broadcast worldwide (...).
70. The interview (...) was broadcast in Portugal on the SIC channel on 9 and 12 May 2009.
71. The applicants (...), in collaboration with the British television channel "Channel 4", made a 60-minute documentary on their daughter's disappearance, entitled "Still missing Madeleine".
(...)
74. The documentary (...) was broadcast on the SIC television channel on 12 May 2009.
(...)
76. 76. In Portugal and throughout the world, the disappearance of Madeleine McCann, the investigation carried out to find her and clarify the facts, its evolution and vicissitudes, such as the indictment of the applicants (...) or the withdrawal of the defendant [G.A.] from the investigations undertaken under its coordination, have aroused enormous public interest.
77. The plaintiffs (...) used the services of PR firms and spokespersons through the Madeleine Fund[3].
(...)
80. The facts relating to the criminal investigation into the disappearance of Madeleine McCann to which the defendant [G.A.] refers in the book, in the interview with the daily newspaper Correio da Manhã and in the documentary are, for the most part, facts that occurred and were documented in that investigation.
81. Faced with the statements made by the defendant [G.A.] in his book, in his documentary and in his interview in the daily newspaper Correio da Manhã, the claimants felt anger, despair, anxiety and worry; they suffered from insomnia and lost their appetite.
82. They feel uncomfortable knowing that they are considered, by those who believe in the defendant's [G.A.'s] thesis, (...) as the ones responsible for hiding [their daughter's] corpse and as the ones who simulated her abduction."
41. On the merits, the Court observed that it was called upon to rule on a conflict between the applicants' right to protection of their image and reputation, on the one hand, and G.A.'s right to freedom of expression under the banner of freedom of opinion, on the other, noting that these rights were guaranteed by Articles 8 and 10 of the Convention respectively. It noted that the case also raised the question of the presumption of innocence, which was guaranteed by Article 6 § 2 of the Convention and was closely linked to the applicants' reputation. According to the Court, these rights deserved equal protection. It observed that the Court's jurisprudence nevertheless appeared to give precedence to freedom of expression and freedom of the press, accepting few restrictions when it came to matters of public interest. It cited in particular the judgments in Thoma v. Luxembourg (no. 38432/97, ECHR 2001-III) and Palomo Sánchez and Others v. Spain ([GC], nos. 28955/06 and 3 others, ECHR 2011) in this respect. As regards to the presumption of innocence, the Court noted that Allen v. the United Kingdom ([GC], no. 25424/09, ECHR 2013) had emphasised its importance after an acquittal or a withdrawal of proceedings.

42. The Court considered that, in the present case, G.A.'s right to freedom of expression had to take precedence over the applicants' rights. In so doing, it relied on the fact that G.A. was not a mere commentator on news stories but had in fact directed the criminal investigation against the applicants. It considered that, although he had been retired since 1 July 2008, G.A. was therefore bound by the duty of confidentiality and professional secrecy (duty of secrecy) in light of Article 12 of the Judiciary Police Act and Article 74 § 1 of the Statute for retired public officials (see paragraphs 66-67 below). It concluded that his conduct was unlawful under Article 483 of the CC (see paragraph 65 below).

3 The defendants' appeals and the judgment of the Lisbon Court of Appeals of 14 April 2016

43. G.A., G.P. Editions and V.C. appealed the judgment to the Lisbon Court of Appeal. In their appeal briefs they all argued that the Lisbon Court's judgment infringed their freedom of expression.

44. In a judgment of 14 April 2016, the Lisbon Court of Appeals, sitting as a panel of three judges, overturned the Lisbon Court's judgment. In its judgment, it considered that G.A.'s right to freedom of expression and opinion prevailed in this case over the rights of the applicants. In its relevant parts in this case, its reasoning read as follows:

"(...) the theory that the child had died as a result of an accident and that this accident had been concealed by the parents, who had spread the hypothesis of an abduction in order to avoid it, was not new. Indeed, this theory was also contained in the report [of the PJ of 10 September 2007] which led to [the applicants'] indictment. Now, with the availability of the copy of the investigation report, [this thesis] has been made public by the media (...).
As was stated in the judgment delivered by this Section in the proceedings concerning the interim measure attached to the present case (...), given that the institution to which he was linked did not allow the appellant to respond to the attacks made on his ability and reputation as a member of the judiciary police, the publication of the book in question, in which the author set out his view of the facts, must be regarded as evidence of the legitimate exercise of his freedom of opinion.
Furthermore, it is clear from the facts that have been established that ... it was the [applicants] themselves who ... gave numerous interviews and gave statements in the national and international press. Thus, it was they themselves who had restricted their right to respect for their private life.
Consequently, by acting as they did, they allowed everyone to form their own opinion on the case, which contradicts their thesis (...).
Furthermore, it is not clear how the right of the [applicants] to procedural guarantees - including the right to a fair investigation and the right to freedom - following their indictment could have been affected by the content of a book which, in essence, described and interpreted the facts in the investigation files and whose content had been made public.
Even if it was decided that the facts were not sufficient to lead to an indictment, it is not precluded that the very same facts may be assessed differently, particularly in the context of a literary work.
Thus (...) we consider that the publication in question is lawful.
45. With regard to the duty of confidentiality to which, according to the Lisbon Court, G.A. was bound, the Lisbon Court of Appeals concluded its judgment as follows:

"(...) irrespective of the reasons given by the appellant to justify the publication, it is difficult to understand how a civil servant, who is retired, could remain bound by the duty of confidentiality and the duty to maintain the secrecy of the investigation, which would restrict his freedom of opinion, in relation to the interpretation of facts which had already been made public by the judiciary authority and which had already been extensively debated (moreover, to a large extent, on the initiative of the [appellants] themselves) in the press at national and international level.
(...) ".

4 The applicants' appeal to the Supreme Court and the Supreme Court's judgments

a) The applicants' appeal to the Supreme Court

46. The applicants appealed to the Supreme Court. In their appeal they reiterated that the book, the documentary and the statements made by G.A. in the interview he had given to the daily Correio da Manhã had damaged their reputation, good name, image and right to be presumed innocent. In addition, they maintained that G.A. had made no reference to the shelving of the case internally, which in their view called into question the work of the judiciary.

47. The applicants argued that all the actions they had taken to find their daughter had been legitimate and that this fact could not be held against them. On this point, the relevant parts of their appeal read as follows:

" (...)
d. Furthermore, the honour, reputation and image of any innocent citizen who has been declared innocent are tarnished by the media which intend to, and do, disregard and thus weaken a decision handed down by State judges, the sole holders of criminal law, by portraying the citizen in question as a suspect of having committed crimes (...)
(...)
l. In Portugal, in view of the Constitution, the Universal Declaration of Human Rights, the European Convention on Human Rights and the Convention on the Rights of the Child, it is not permitted to write, disseminate by any means and comment with every possible nuance, a thesis that incriminates innocent citizens who have never been accused of the crimes it exposes. It is therefore not up to the State and the courts to protect those who do so, but to protect the victims of such attacks.
m. Precisely because they are not only absolutely innocent but also because they are entitled to benefit from the presumption of innocence in acting and behaving like any citizen who has not been indicted, everything that the parents of a missing child do, legally, for themselves, to find their daughter or on her behalf, to find out what has happened to her, must be accepted by Portugal not as a voluntary restriction of their fundamental personal rights as parents, but as an activity protected by domestic and international law in which the affirmation and dissemination urbi et orbi of the thesis proclaimed by the defendants on appeal (the respondent) cannot fall within the scope of permissible criticism of this behaviour.
(...) "

b) The Supreme Court ruling of 31 January 2017

48. In a judgment of 31 January 2017, the Supreme Court confirmed the decision of the Lisbon Court of Appeals. In its judgment, the Supreme Court considered that the central issue in the case was how to resolve the conflict between the right to freedom of expression, freedom to inform and freedom of the press in respect of G.A. and the companies G.P. and V.C., on the one hand, and the right to protection of the applicants' reputation and good name, on the other. Taking account of the Court's jurisprudence, it considered that these rights were equally protected by the Convention and that, in the event of a conflict, it was necessary to balance them in order to determine which right deserved greater protection in this case where the harmonisation of the interests at stake prescribed by Article 335 of the Civil Code (see paragraph 65 below) was not possible.

49. The Supreme Court recalled the Court's case law on freedom of expression and stressed that it was for the national judge to interpret and apply the Convention and that it was important for national judges to follow the inter-judicial dialogue rigorously. In particular, it considered the following:

"(...) we note that the ECHR tends to resolve issues of interference with freedom of expression by taking into account their exceptional character and the central importance of this freedom in a democratic society. In contrast, at the level of national courts, there is a tendency to relegate freedom of expression to second place by giving precedence to the right to honour.
This has led to Portugal being condemned by the ECHR for violations of Article 10 of the Convention (see, for example, Lopes Gomes da Silva v. Portugal (2000), Urbino Rodrigues v. Portugal (2005), Roseiro Bento v. Portugal (2005), Almeida Azevedo v. Portugal (2008), Medipress-Sociedade Jornalistica, Lda v Portugal (2016) and Tavares de Almeida Fernandes e Almeida Fernandes v Portugal (2017).
It should be noted, in this regard, that in the event of the Portuguese State being found in breach of the ECHR, an application for review may be lodged for the purpose of revising the decision in question (...)."

50. The Supreme Court challenged the Lisbon court's judgment in so far as it had decided the conflict of interest at issue on the basis of the applicants' right to be presumed innocent and G.A.'s right of confidentiality (see paragraphs 41-42 above), and put forward several arguments. Firstly, the disputed assertions made by G.A. were not new since they had been set out in the PJ's report of 10 September 2007, which was included in the investigation files and to which the press had had access; these assertions, which had thus already been widely commented on and debated, were therefore a matter of general interest. Secondly, the applicants, who had deliberately exposed themselves in the media, were to be regarded as "public persons", who were therefore inevitably subject to closer scrutiny of their conduct and opinions. In this respect, the judgment of the Supreme Court, in its parts relevant to the present case, reads as follows:

"(...) it can be said in this case that we are dealing with a case which concerns persons of a certain public character, given that the appellants are intervening publicly to influence a debate of public interest (...).
We are also dealing with persons who have voluntarily become public persons and who have accepted to bear the vulnerability that comes with exposure in the public arena, as a consequence of the role they have sought to play in the public debate in which they have decided to intervene.
Moreover, as stated in the judgment under appeal and as is clear from the facts established, it was the appellants themselves who, because they had easy access to them, had intensified the number of interviews and interventions in the national and international media. In this way they gave everyone the opportunity to form their own opinion on the case, which contradicts their thesis.
(...)
As already mentioned, the ECHR has moved towards a stronger protection of freedom of expression when the person against whom allegations of facts or judgments of value are made is a public person and the matter concerns a matter of public interest.
When the target is a public person and not a private individual, he or she is inevitably and consciously more exposed to closer scrutiny of his or her actions and opinions, both by journalists and by the public at large, and must therefore be more tolerant of such scrutiny.
This is especially true when it is the person concerned who makes public statements that may be criticised.
This does not mean that the public person is not entitled to protection of his or her reputation, even outside his or her private life.
(...) "

51. Referring to the case of Oberschlick v. Austria ((no. 1), 23 May 1991, Series A no. 204), the Supreme Court observed that it was necessary to determine whether the contentious statements constituted judgments of value or statements of fact. It considered that in the present case G.A. was expressing his opinion about the child's disappearance on the basis of the evidence gathered during the investigation. On this point the judgment, in its parts relevant to the present case, reads as follows:

"(...) the judgment of value and the logical-deductive reasoning which he develops throughout his book lead [G.A.] to conclude that the child - who was the victim of negligence on the part of her parents (...) - died accidentally inside the apartment where she was, and that an abduction was simulated and the corpse covered up.
Continuing his logical reasoning, [G.A.] undermines the evidence that would support the claim that Madeleine had been abducted.
Such conclusions were then reproduced by [G.A.] in the documentary and interview referred to below (...).
There is no doubt that [G.A.] was, until 2 October 2007, the judiciary police inspector responsible for coordinating the investigation into the disappearance of Madeleine McCann (...). He was therefore familiar with every detail of the clues and evidence that had been gathered and the investigative measures that had been taken up to that date.
It is therefore not surprising that the facts relating to this investigation set out in the book, the interview and the documentary are, for the most part, facts that occurred and are documented in this investigation.
(...)
At some point the argument put forward by [G.A] was adopted by the authority constitutionally responsible for conducting the criminal investigation.
Moreover, the [applicants] were indicted in connection with that criminal investigation (...).
It is true that the investigation was subsequently shelved, since the suspicions that had led to their indictment could not be confirmed (...).
However, even the decision to shelve the case expresses serious reservations as to the plausibility of Madeleine's abduction, given the doubts raised by the versions given by [J.T] and Kate McCann.
These are doubts which the investigation sought to clarify by means of a reconstruction of the facts, but which could not take place because the witnesses did not appear.
(...) "

52. The Supreme Court also observed that in the foreword to his book G.A. (see paragraph 21 above) explained that his intention was to clear his name, which he felt had been sullied, and to contribute to a debate of public interest and to the proper administration of justice. Taking into account the circumstances of the case, it found that the book, documentary and interview at stake did not reflect any defamatory intent against the applicants and that the opinion expressed by G.A. was based on a logical assessment of the facts and evidence gathered during the investigation.

53. As regards to the alleged infringement of the presumption of innocence by reason of the contentious statements at stake, referring to the Konstas v. Greece judgment (no. 53466/07, 24 May 2011), the Supreme Court recalled that judicial matters could be the subject of public debate, although the public authorities should exercise restraint in this respect. Citing Allen v. the United Kingdom ([GC], no. 25424/09, ECHR 2013), it observed that the presumption of innocence could imply that, beyond the criminal proceedings, the judicial authorities involved in subsequent proceedings must respect a decision to acquit or shelve a case. It considered that in this case the issue was not the criminal liability of the applicants but the civil liability of the defendants on appeal for having prepared and disclosed a thesis about the child's disappearance. According to the Supreme Court, the dismissal of the action could not therefore be interpreted as a finding of guilt of the applicants. On this point it referred to Del Latte v. the Netherlands (no. 44760/98, 9 November 2004) and Cheema v. Belgium (no. 60056/08, 9 February 2016).

54. The Supreme Court also considered that the criminal investigation had been abandoned for lack of conclusive evidence, which in its view justified even less restriction of freedom of expression in this case. On this point, the relevant parts of the Supreme Court's judgment read as follows:

" (...)
We are faced with a decision to shelve the case by the public prosecutor's office, which can be amended in various ways.
(...)
This is also specified in the note sent to the media by the Attorney General's office on 21 July 2008 (...).
Consequently, given that the decision to shelve the investigation is not a judicial decision in the strict sense and is not final, it would be even less justified to invoke the principle of the presumption of innocence to restrict freedom of expression.
(...)
And let it not be said that the appellants were cleared (exonerated) by the decision to shelve the criminal investigation.
In this case, the decision was not taken because the public prosecutor was convinced that the applicants had not committed a criminal offence (see Article 277 § 1 of the CPC).
The decision to shelve the case was taken because the public prosecutor's office had not obtained sufficient evidence to show that the applicants had committed a criminal offence (see Article 277 § 2 of the CPC).
There is thus a significant, and not merely semantic, difference between the legally permissible grounds for a decision to shelve a case.
Such a decision, based on the lack of conclusive evidence (lack of sufficient evidence), cannot be considered as proof of innocence (proof of acquittal).
We therefore consider that the alleged violation of the principle of presumption of innocence should not be upheld, as this principle is not relevant to the determination of the issue in this case.
(...) ".

55. Finally, agreeing with the analysis of the Court of Appeal (see paragraph 45 above), the Supreme Court considered that, given that G.A. was a retired civil servant, the only question to be asked was whether there was a duty of secrecy (duty of professional secrecy) rather than a duty of confidentiality. It observed that this duty remained even in the case of a retired civil servant. However, it found that in the present case the facts in dispute had already been made public by the judicial authority and had been widely discussed, both nationally and internationally, and that the investigation had been closed. It concluded that freedom of expression should take precedence over the duty of secrecy or the duty of confidentiality to which the applicants considered G.A. was bound. On this point, the Supreme Court expressed itself as follows:

" (...)
In the present case, as regards the existence of a duty of confidentiality or judicial secrecy which continues during retirement, it must be considered that this is a functional duty which is intended essentially to protect the interests of the service to which [G.A.] belonged, in particular the effectiveness of the criminal investigation.
However, the facts in question had already been made public by the judicial authority and had been widely discussed, both nationally and internationally. Moreover, the investigation was closed.
(...)
It should be added that the ECHR, in similar situations, takes into account above all the importance for the proper functioning of justice of having the cooperation of an enlightened and well-informed public (see Saygılı and Others v. Turkey [no. 19353/03, 8 January 2008] and July and SARL Libération v. France, no. 20893/03 [ECHR 2008 (extracts)])
We therefore consider that freedom of expression must not give way to the alleged duty imposed on [G.A], as his conduct cannot be held unlawful on that basis, as the court of first instance held.
(...) "
56. The conclusion of the judgment in its relevant parts reads as follows:

" (...)
We consider that, in the present case, in view of the facts that have been established, the exercise of freedom of expression has remained within the limits permissible in today's democratic, open and plural society, bearing in mind the balancing test and the principle of proportionality. There was therefore no unlawful interference with the applicants' right to reputation.
Such a conclusion follows from the interpretation of the domestic rules, in conjunction with the Constitution, but also of the European Convention on Human Rights, read in the light of the case-law of the ECHR.
(...)
We must therefore conclude that in the present appeal case the defendants' rights to freedom of expression, information and press prevail (...).
(...). "

c) The applicants' complaint and the Supreme Court's judgment of 21 March 2017

57. The applicants argued that the judgment was null and void, citing a contradiction between the decision and its reasoning. In particular, they challenged the Supreme Court's analysis of the principle of the presumption of innocence in the present case.

58. By a judgment of 21 March 2017, the applicants were dismissed. In its judgment, the Supreme Court considered that the ground invoked was not valid for the purposes of a nullity application because there was no contradiction between the decision and its grounds, nor between the reasons themselves. In its relevant parts, the judgment read as follows:

"(...) it was established in the [contested] judgment that the decision [to shelve the case] could not amount to proof of innocence.
Nowhere does the decision state that conclusive evidence had been gathered which would have led to the conclusion that no criminal offence had been committed or that the defendants at the time of the events (in this case the applicants) had not committed it (see Article 277 § 1 of the CPC).
Moreover, the note sent to the media (...) clearly indicates that the investigation was shelved without further action pursuant to Article 277 § 2 of the CPC.
If the investigation had been closed under paragraph 1 of the same article, it could not be reopened (...).
In any event, the idea was simply to challenge the appellants' claim that they had been declared innocent by the said decision.
Thus, in either case, irrespective of the reasons underlying the shelving of the investigation (...) we would have considered that public criticism and public scrutiny of the operation of justice were not prohibited (...).
In short, we would still conclude that the principle of the presumption of innocence was not relevant to the question we are called upon to decide.
(...) "

THE RELEVANT DOMESTIC LEGAL FRAMEWORK AND PRACTICE

I. The Constitution

59. The Constitution guarantees the right to protection of reputation and privacy (Article 26) as well as freedom of expression and freedom of the press (Article 38).

II. The Civil Code

60. The provisions of the Civil Code relevant to the present case read as follows:

Article 70

General protection of the person

"1. The law shall protect individuals against unlawful attacks or threats of attacks on their physical or moral integrity.

2. Without prejudice to the civil liability to which the infringement would lead, the person concerned may request measures, appropriate to the circumstances of the case, with the aim of preventing the execution of a threat or mitigating the consequences of an infringement."

Article 335

Conflict of rights

"(1) In the event of a conflict between identical or similar rights, the persons concerned shall compromise to the extent necessary to ensure that all rights produce their effects equally, without this being to the detriment of one of the parties.

(...) "

Article 483

General principle

"Anyone who, through fraud or simple negligence, unlawfully infringes a right of another person, or any legal provision whose purpose is to protect the interests of another person, shall compensate the injured party for the damage resulting from such an act.

(...) "

Article 484

Damage to reputation and good name

"Anyone who states or reveals a fact that may damage the reputation and good name of a natural or legal person shall be liable for the damage caused.

III. THE CRIMINAL PROCEDURE CODE

61. Article 277 of the CPC reads as follows in its relevant parts:

Article 277

Shelving of the investigation

"1. The Public Prosecutor's Office shall issue an order shelving the investigation if it has gathered sufficient evidence (significant proof) to show that no crime has been committed, that the defendant has not committed a crime in any respect or that the proceedings are legally inadmissible.

2. The investigation shall also be shelved if the Public Prosecutor's Office has not been able to obtain sufficient evidence (sufficient indicia) to show that a crime has been committed or to prove the identity of the perpetrators.

(...) "

IV. OTHER RELEVANT PROVISIONS OF DOMESTIC LAW

A. The Organic Law on the Judiciary Police

62. At the time of the events, article 12 of the Judiciary Police Organic Law, as approved by Decree-Law no. 275-A/2000 of 9 November 2000, read as follows:

"1. The acts of criminal proceedings and judicial cooperation are subject to judicial secrecy, in accordance with the law.

2. Officials on duty in the judiciary police may not make public disclosures as to confidential proceedings or matters, except for those aspects referred to in the provisions of this law relating to public information and preventive actions carried out among the population and in the relevant provisions of the Code of Criminal Procedure.

3. When admissible, the statements referred to in the preceding paragraph shall require the authorisation of the National Director or Deputy National Directors, in pain of disciplinary proceedings and without prejudice to possible criminal liability.

4. Preventive actions and investigative procedures (...) are covered by professional secrecy, in application of the general law.

B. The status of retired public officials

63. Article 74 § 1 of the Statute for Retired Public Administration Employees (Retirement statute) as approved by Decree-Law no. 478/1972 of 9 December 1972 reads as follows:

"The retired agent has the right to a retirement pension and remains linked to the public service. He/she retains the titles and category of the post he/she occupied, as well as the rights and duties not specifically attached to the status of active employee (activity status)".

IN LAW

I. OBJECT OF THE LITIGATION AND QUALIFICATION OF THE COMPLAINTS

64. The applicants raised two complaints before the Court under Articles 6 §§ 1 and 2, 8 and 10 § 2 of the Convention. Firstly, they alleged that the statements made by G.A. about them in the book "Maddie: a verdade da mentira", in the documentary based on it and in the interview given to the daily Correio da Manhã (see paragraphs 19, 23 and 24 above) had damaged their reputation, good name and image and their right to be presumed innocent. In particular, they complained that the national courts had rejected the civil actions they had brought to enforce their rights at the domestic level. Secondly, they argued that the reasoning contained in the Supreme Court's decisions following the civil proceedings (see paragraphs 48 and 58 above) had infringed their right to the presumption of innocence.

65. The Court notes that G.A. was a judiciary police inspector but that he was retired at the time of the publication of the book, the documentary and the interview in the daily newspaper in question (see paragraph 15 above). It therefore considered that his actions could not be imputed to the State. The applicants' first complaint therefore concerns the alleged failure of the national authorities to protect their rights against the actions of an individual. The second complaint related to the alleged infringement of the applicants' right to the presumption of innocence on account of the reasoning contained in the Supreme Court's judgments.

66. The Court reiterates that it is sovereign as to the legal characterisation of the facts and is not bound by the characterisation attributed to them by the applicants (Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). Thus, having considered the circumstances as denounced by the applicants and the formulation of their complaints, it will examine the alleged violation of their right to protection of reputation on account of the statements made by G.A. from the angle of Article 8 of the Convention and, more particularly, from the angle of the positive obligations arising from that provision (see paragraph 67 below), and the alleged violation of their right to the presumption of innocence on account of the reasoning contained in the Supreme Court's judgments from the angle of Article 6 § 2 of the Convention alone (see paragraph 103 below).

II. ON THE ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

67. The applicants complained that they had not been successful at the domestic level despite the damage which G.A. had allegedly caused to their reputation, good name and image and to their right to be presumed innocent. As indicated above (see paragraph 66 above), this part of the application must be examined solely in the light of Article 8 of the Convention. In its part relevant to the present case, Article 8 reads as follows:

"Everyone has the right to respect for his private and family life ...

(...)"

A. ON THE ADMISSIBILITY

1. Applicability of Article 8 of the Convention

68. The Court recalls that the concept of private life is a broad one, encompassing elements relating to a person's identity, such as name, image and physical and moral integrity (see Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004-VI). It is accepted in the Court's case-law that a person's right to the protection of his or her reputation is covered, as an element of the right to respect for private life, by Article 8 of the Convention (Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012, Delfi AS v. Estonia [GC], no. 64569/09, § 137, ECHR 2015, Bédat v. Switzerland [GC], no. 56925/08, § 72, ECHR 2016, and Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 76, ECHR 2017). The Court has already held that a person's reputation is part of his or her personal identity and moral integrity, which are a matter for his or her private life even if that person is the subject of criticism in public debate (Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007, and Petrie v. Italy, no. 25322/12, § 39, 18 May 2017). The same considerations apply to a person's honour (Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007, A. v. Norway, no. 28070/06, § 64, 9 April 2009, and Kaboğlu and Oran v. Turkey, nos. 1759/08 and 2 others, § 65, 30 October 2018).

69. However, for Article 8 of the Convention to come into play, the interference with personal reputation must be of a certain level of seriousness and have been carried out in such a way as to cause harm to the personal enjoyment of the right to respect for private life (see Bédat, cited above, § 72, Denisov v. Ukraine [GC], no. 76639/11, § 112, 25 September 2018, Beizaras and Levickas v. Lithuania, no. 41288/15, § 117, 14 January 2020, and De Carvalho Basso v. Portugal, (dec.), nos. 73053/14 and 33075/17, § 43, 4 February 2021).

70. The Court notes that the contentious statements made by G.A. in the book, documentary and interview in question relate to the applicants' alleged involvement in the concealment of their daughter's corpse, the hypothesis that they had staged an abduction and acts of negligence towards their daughter (see paragraphs 21-22 above). It considers these allegations to be of sufficient gravity to call for the application of Article 8 of the Convention (see, mutatis mutandis, Sanchez Cardenas, cited above, §§ 33 and 38, and compare with Jishkariani v. Georgia, no. 18925/09, § 47, 20 September 2018).

2. Conclusion

71. Finding that the complaint under Article 8 of the Convention was not manifestly ill-founded or inadmissible on any other ground under Article 35 of the Convention, the Court declared it admissible.

B On the merits

1 . Arguments of the parties

a) The applicants

72. The applicants complained that their reputation and their right to be presumed innocent had been damaged by the statements made by G.A. about them in his book, in the documentary based on it and in the interview given to the daily Correio da Manhã. They argue that G.A. asserts in a way that they describe as peremptory, sensationalist and dishonest that they are responsible for the death of their daughter, that they hid her corpse and that they made the facts look like an abduction. They deplored the fact that such accusations had been made at a time when the investigation into their daughter's disappearance had just been completed and they had been cleared. The applicants submitted that G.A. did not even refer in his book the fact that the case had been shelved by the public prosecutor's office as far as they were concerned. They considered that the alleged violation had been all the more serious in that the book and documentary had been translated into several languages, which had, in their view, also enabled G.A. to make substantial profits.

b) The Government

75. The Government considered that the applicants' allegations concerning the violation of the presumption of innocence were closely linked to those concerning the violation of their reputation and were therefore covered by Article 8 of the Convention.

76. The Government further indicated that in the present case the question arose of a conflict between divergent rights deserving, in their view, equal protection, namely, on the one hand, the right to freedom of expression and opinion of G.A., of his publisher and his producer and, on the other, the applicants' rights to protection of their reputation and to the presumption of innocence. The Government noted that, in the present case, the higher national courts had upheld the rights of the former by considering that they had not exceeded the limits of permissible criticism, an analysis to which it stated that it subscribed for the following reasons. Firstly, the contentious statements at stake, being part of a court case which had received massive media coverage both at national and international level, relate to a subject of general interest. Secondly, that significant media coverage resulted for the applicants in a high level of public notoriety. Thirdly, the matters in dispute fell within G.A.’s freedom of opinion and thus benefited from greater protection. Fourthly, the applicants had been indicted because of the suspicions which weighed on them and these elements appearing moreover in the investigation files which had been released to the press, the thesis defended by G.A. in his book would have already been made public. It would therefore not have been confidential information. Moreover, referring to the judgment SIC - Sociedade Independente de Comunicação v. Portugal (no. 29856/13, § 69, July 27, 2021), the Government finally considers that a condemnation would have had a deterrent effect on the debate on court cases.

77. The Government concluded that the domestic courts had in the present case upheld G.A.'s freedom of expression in accordance within the margin of appreciation which, in their view, fell to them.

2. The Court's appreciation

a) General principles

78. While the main purpose of Article 8 is to protect the individual against arbitrary interference by public authorities, it does not merely require the State to refrain from such interference: in addition to this negative obligation, there may be positive obligations inherent in the effective respect of private or family life. These obligations may require the adoption of measures aimed at respecting private life even in the relations between individuals (Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 98, ECHR 2012). The State's responsibility may thus be engaged if the facts in dispute result from a failure on its part to guarantee the enjoyment by the persons concerned of the rights enshrined in Article 8 of the Convention (Bărbulescu v. Romania [GC], no. 61496/08, § 110, 5 September 2017, and Schüth v. Germany, no. 1620/03, §§ 54 and 57, ECHR 2010). The boundary between positive and negative State obligations under Article 8 does not lend itself to precise definition; the applicable principles are nevertheless comparable. In particular, in both cases, it is necessary to take into account the fair balance to be achieved between the competing interests at stake (see Von Hannover (no. 2), cited above, § 99).

79. The choice of the appropriate measures to ensure compliance with Article 8 of the Convention in relations between individuals is, in principle, a matter for the Contracting States' margin of appreciation, irrespective of whether the State's obligations are positive or negative (ibidem, § 104, with references therein). Similarly, under Article 10 of the Convention, Contracting States have a certain margin of appreciation in assessing the necessity and extent of interference of the freedom of expression protected by that provision (ibid.). However, this margin goes hand in hand with a European control over both the law and the decisions applying it, even when these are issued by an independent court. In exercising its supervisory jurisdiction, it is not the Court's task to take the place of the national courts, but it is for it to ascertain, in an overall view of the case, whether the decisions they have given under their discretionary powers are compatible with the Convention provisions relied on (ibid., § 105, with the cited references).

80. In cases which require a balance to be struck between the right to respect for private life and the right to freedom of expression, the Court considers that the outcome of the application cannot in principle vary according to whether the case has been brought before it, under Article 8 of the Convention, by the person who is the subject of the report or, under Article 10, by the person who published it. Indeed, these rights deserve a priori equal respect. Accordingly, the margin of appreciation should in principle be the same in both cases (Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 91, ECHR 2015 (extracts) and Medžlis Islamske Zajednice Brčko and others, cited above, § 77).

81. The relevant criteria for balancing the right to respect for private life and the right to freedom of expression are the following: the contribution to a debate of general interest, the notoriety of the person concerned, the subject of the report, the previous behavior of the person concerned, the content, form and repercussions of the publication, as well as, where appropriate, the circumstances of the case (see, Von Hannover (no 2), cited above, § § 108-113, Axel Springer AG, cited above, §§ 89-95, and Couderc and Hachette Filipacchi Associés, cited above, § 93). If the national authorities have carried out this balancing exercise in accordance with these criteria, there must be serious reasons for the Court to substitute its opinion for that of the domestic courts (MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011).

82. Lastly, the Court recalls that, in order to asses the justification of a contested statement, a distinction must be drawn between factual statements and judgments of value. Whereas the materiality of the facts can be proved, the latter do not lend themselves to a demonstration of their accuracy. The requirement that the truth of judgements of value be established is impractical and infringes freedom of opinion itself a fundamental element of the right guaranteed by Article 10. However, even where a statement amounts to a judgment of value, it must be based on a sufficient factual basis, as otherwise it would be excessive (Do Carmo de Portugal and Castro Câmara v. Portugal, no. 53139/11, § 31, 4 October 2016, and Egill Einarsson v. Iceland, no. 24703/15, § 40, 7 November 2017).

b) Application of these principles to the present case

83. In the present case, the applicants complained that the national courts had failed to fulfil their positive obligation to protect their right to be presumed innocent and their reputation (see paragraph 74 above). The Court notes that the national courts correctly 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 reputation which was linked to the applicants' right to be presumed innocent, and that 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 (see paragraphs 41, 44 and 48 above).

84. The question which arises, therefore, is whether the national courts have balanced these rights in accordance with the criteria established by the Court's case-law (see paragraph 81 above). For the purposes of the present case, the Court will examine the contribution of the disputed material to a debate of general interest, the applicants' previous conduct and notoriety, the subject-matter of the book, documentary and interview and the way in which the information was obtained, as well as the content of the disputed statements, their repercussions and the particular circumstances of the case.

i. Contribution to a debate of general interest

85. As regards the existence of a question of general interest, the Court observes that the national courts have noted that the criminal proceedings brought concerning the disappearance of the applicants' daughter had had a great media impact both at nationally and internationally and that it had been the subject of much debate (see paragraphs 40 (point 76), 45 and 50 above). In its judgment of 31 January 2017, referring to the Court's case-law, the Supreme Court concluded that the case constituted a matter of public interest (see paragraphs 50-52 above). The Government subscribed to such an analysis (see paragraph 76 above). In the eyes of the Court, there is indeed no doubt that G.A.'s book, its adaptation into a documentary and the interview he gave to the daily newspaper Correio da Manhã concerned a debate which was of public interest. Indeed, the extensive media coverage the case received testifies to the interest it aroused both national and international level. The Court reiterates in this regard that the public has a legitimate interest in being informed and in obtaining information about criminal proceedings (see Morice v. France [GC], no. 29369/10, § 152, ECHR 2015, and Bédat, cited above, § 63). Moreover, Article 10 § 2 of the Convention leaves little room for restrictions on freedom of expression with regard to matters of general interest, the margin of appreciation of States in this matter being thus reduced. (see, mutatis mutandis, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 167, 27 June 2017). The Court considers that this is the case here (compare with Morice, cited above, § 153, and Prompt v. France, no. 30936/12, § 43, 3 December 2015).

ii. The past behaviour and notoriety of the applicants

86. As to the applicants' conduct prior to the publication of the book and the dissemination of the other disputed material, the Court notes that the domestic courts held as established that the applicants had informed the press about their daughter's disappearance and that they had used PR agencies and recruited press assistants (see established facts nos. 67 and 77 above). In its judgment of 14 April 2016, the Lisbon Court of Appeals considered that they had voluntarily exposed themselves to the media (see paragraph 44 above). The Supreme Court, for its part, concluded in its judgment of 31 January 2017 that the applicants had become public persons and that they should therefore show greater tolerance as regards public scrutiny of them (see paragraph 50 above). The Government agreed with this analysis (see paragraph 76 above).

87. The Court reiterates that, while the limits of permissible criticism are wider in relation to any person who is part of the public sphere, whether by virtue of his or her actions or position (see Couderc and Hachette Filipacchi Associés, cited above, § 122), in certain circumstances a person, even one who is known to the public, may have a "legitimate expectation" that his or her private life will be protected and respected (Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 § 53, 4 June 2009, and Von Hannover (no. 2), cited above, § 97).

88. The Court understands that, in appealing to the media, the applicants wanted to exploit all possible means to find their daughter. Nevertheless, although the applicants were unknown to the public before the events, their exposure to the media eventually led to them becoming well-known and entering the public sphere. As a result, they inevitably and consciously exposed themselves to close scrutiny of their actions (see Axel Springer AG, cited above, § 54, and compare Ristamäki and Korvola v. Finland, no. 66456/09, § 53, 29 October 2013, Salumäki v. Finland, no. 23605/09, § 55, 29 April 2014, and M.L. and W.W. v. Germany, nos. 60798/10 and 65599/10, § 106, 28 June 2018). That said, the Court reiterates that the mere fact of having previously co-operated with the press is not sufficient to deprive the person, referred to in an article, of all protection (Egeland and Hanseid v. Norway, no. 34438/04, § 62, 16 April 2009). It will therefore have to be determined whether the limits of permissible criticism have been exceeded in the circumstances of the case.

iii. The subject of the book, documentary and interview and how the information was obtained

89. The Court notes that, in the present case, the central element of the dispute is the book "Maddie: a verdade da mentira", of which G.A. is the author and which was published on 24 July 2008 (see paragraphs 19-22 above). Indeed, the documentary that was broadcast on TVI on 13 April and 12 May 2009 and subsequently marketed is an adaptation of it (see paragraphs 24-27 above). The interview in the Correio da Manhã newspaper published on 24 July 2008, on the day of the book's launch, was part of an effort to publicise it (see paragraph 23 above). The Court notes that the domestic courts noted that the book had been translated into several languages (see paragraph 40 (28) above). There is therefore no doubt that the book was widely distributed.

90. The Court observes that the material in dispute concerned the criminal investigation which G.A. had conducted into the disappearance of Madeleine McCann until he was removed from it (see paragraphs 20 and 14 above). In its judgment of 31 January 2017, the Supreme Court considered that the disputed information provided by G.A. was not new since it had already been included in the criminal investigation files which had been made available to the media (see paragraphs 50 and 17 above). It further noted that it was on the basis of these elements that the applicants had been indicted and that this had been the subject of several discussions. In the Court's view, there seems to be no doubt in the present case that the information contained in the book, the documentary and the interview came from the files relating to the criminal investigation which were public.

iv. The content of the disputed statements and their implications

91. Concerning the contents of the book, the documentary and the interview, the applicants essentially criticised the assertions that they had, on the one hand, concealed the cadaver of their daughter, who had died as a result of a domestic accident, and, on the other, simulated an abduction. They deplored the fact that such insinuations had been made at a time when, in their view, the suspicions which had weighed on them had just been lifted internally with the shelving of the case (see paragraphs 72-73 above).

92. The Court has already found that the statements in question were serious, particularly as they were made not by a journalist or any other individual but by G.A., the inspector who headed the investigation until he was removed from it on 2 October 2007 (see paragraphs 70, 8 and 14 above). It notes that, referring to the Court's case-law, the domestic courts nevertheless considered that they reflected G.A.'s opinion on the case and that they contributed to the discussion of a matter of public interest (see paragraphs 41, 44 and 51 above). In particular, in its judgment of 31 January 2017, the Supreme Court tended to regard them as judgments of value based on matters of fact, namely the material in the investigation files up to 2 October 2007, when G.A. had been removed from the investigation (see paragraphs 50-51 above). Moreover, in the Supreme Court's assessment, in view of the purposes which G.A. claimed to pursue in the foreword to his book (see paragraph 21 above), the book did not show any intention to defame the applicants (see paragraph 52 above).

93. Bearing in mind the context of the case, the Court is also of the opinion that the assertions at stake constituted judgments of value based on a sufficient factual basis (see, mutatis mutandis, Falter Zeitschriften GmbH v. Austria, no. 26606/04, § 23, 22 February 2007). Indeed, the evidence on which G.A.'s case is based is what was gathered in the course of the investigation and made known to the public (see paragraph 40 (paragraphs 6-7 and 80) and paragraphs 50-51 above). Moreover, this theory had been considered during the criminal investigation and had even led to the applicants' indictment on 7 September 2007 (see paragraphs 10-13 above).

94. The Court notes, moreover, that the criminal case has fascinated both national and international public opinion and has generated a great deal of debate and discussion (see paragraph 40 (paragraph 76) and paragraph 50 above). As the Lisbon Court of Appeals and the Supreme Court noted, the statements in dispute were unquestionably part of a debate in the public interest and G.A.'s argument was therefore one opinion among others (see paragraphs 44-45 and 50-51 above).

95. The Court notes that the criminal case was shelved by the public prosecutor on 21 July 2008 (see paragraph 16 above). In this regard, it observes that if the book had been published before the decision to shelve the case by the public prosecutor's office, the contentious statements in question 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 (see in this connection Allenet de Ribemont v. France, 10 February 1995, § 41, Series A no. 308, and Khuzhin and Others v. Russia, no. 13470/02, § 96, 23 October 2008). Since these statements were made after the case had been shelved, it is the applicants' reputation under Article 8 of the Convention and the way in which they are perceived by the public that are at stake (see G.I.E.M. S. R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 314, 28 June 2018, Istrate v. Romania, no. 44546/13, § 58, 13 April 2021, and the references cited therein and, mutatis mutandis, Marinoni v. Italy, no. 27801/12, § 32, 18 November 2021). Public confidence in the functioning of the judicial system is also at stake (see, mutatis mutandis, Prager and Oberschlick v. Austria, 26 April 1995, § 34, Series A no. 313).

96. In the present case, however, the Court considers that, even supposing that the applicants' reputation had been damaged, it was not because of the thesis defended by G.A. but because of the suspicions that had been raised against them, which had led to them being placed under investigation and had been the subject of extensive media coverage and debate. In short, this was information of which the public had become widely aware, even before the investigation files were made available to the media and the book in question was published (see paragraph 40 (point 76) above). As to the bad faith alleged by the applicants (see paragraph 72 above), the Court notes that the book was published three days after the case had been shelved (see paragraphs 16 and 19 above), which indicates that it was written and then printed while the investigation was still ongoing (see paragraph 21 above). In deciding to put the book on sale three days after the decision to shelve the case, the Court considers that G.A. could, as a matter of prudence, have added a note alerting the reader to the outcome of the proceedings. However, the absence of such a note cannot, in itself, prove bad faith on the part of G.A. Moreover, the Court notes that the documentary itself refers to the shelving of the case (see paragraph 25 above).

97. Finally, the Court notes that, after the publication of the book, the applicants continued their media activities. In particular, they made a documentary about their daughter's disappearance and continued to give interviews to the media at international level (see paragraph 40 (paragraphs 68 and 71) above). While the Court understands that the publication of the book undoubtedly caused the applicants anger, anxiety and concern (see paragraph 40 (paragraph 81) above), it does not appear that the book or the broadcasting of the documentary had any serious impact on their social relations or on their continuing legitimate search for their daughter.

v. The particular circumstances of the case

98. As for the particular circumstances of the present case, the Court observes that the author of the contentious statements was precisely the PJ inspector who had co-ordinated the investigation into the disappearance of the applicants' daughter until 2 October 2007 (see paragraphs 8 and 14 above). Taking this into account, the domestic courts considered whether G.A. had failed in his professional duties. While the Lisbon Court held that, even though he was retired at the time of the events, G.A. had breached his duty of confidentiality and the professional secrecy binding on him (see paragraph 42 above), the Lisbon Court of Appeals and the Supreme Court did not hold this view (see paragraphs 45 and 55 above). In reaching their conclusion, they relied on the fact that the disputed statements had already been widely disclosed and commented upon (see paragraph 55 above).

99. The Court can agree with this analysis. It is true that the disputed statements are based on G.A.'s in-depth knowledge of the case by virtue of his position. However, there is no doubt that they were already known to the public in view of the extensive media coverage of the case (see paragraphs 8, 10 and 40 (paragraph 76) above) and the fact that the investigation files were made available to the media after the investigation was closed (see paragraph 17 above). The Court is therefore of the opinion that the disputed elements are merely an expression of G.A.'s interpretation of a media case which had already been widely discussed. Moreover, it does not appear that G.A. was motivated by any personal animosity towards the applicants (see Guja v. Moldova [GC], no. 14277/04, § 77, ECHR 2008; see also paragraph 21 above).

100. In view of the particular circumstances of the present case, the Court shares the Government's view (see paragraph 76 above) as to the deterrent effect that a condemnation in the present case would have had on freedom of expression in matters of public interest (see, mutatis mutandis, Koudechkina v. Russia, no. 29492/05, § 99, 26 February 2009).

vi. Conclusion

101. In view of all the considerations set out above, the Court considers that the Supreme Court, when acting as the court of last instance, made a careful assessment of the balance to be struck between the applicants' right to respect for their private lives 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 (see paragraphs 49, 51, 53 and 55 above). Considering 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. It does not therefore appear that the national authorities failed to fulfil their positive obligation to protect the applicants' right to respect for their private lives within the meaning of Article 8 of the Convention.

102. There was therefore no violation of Article 8 of the Convention.

III. ON THE ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION ON ACCOUNT OF THE REASONING PUT FORWARD BY THE SUPREME COURT

103. The applicants alleged that the reasoning contained in the Supreme Court's judgments of 31 January and 21 March 2017 in the civil proceedings (see paragraphs 48 and 58 above) had infringed their right to be presumed innocent. As indicated above (see paragraph 66 above), the Court considers it appropriate to examine this complaint solely in the light of Article 6 § 2 of the Convention, which provides:

«Anyone charged with an offense shall be presumed innocent until proven guilty according to law.»

A. The parties' arguments

104. The Government disputed the applicability of Article 6 § 2 of the Convention in the present case. In that respect, it considered that there was no link between the criminal proceedings of which the applicants had been granted a discontinuance and the civil proceedings brought by them following the publication of G.A.'s book and the broadcasting of the documentary film which had been adapted from it. It observed that the criminal proceedings concerned the establishment of the circumstances surrounding the disappearance of the applicants' daughter, whereas the civil proceedings related to the civil liabilities arising from the book and the documentary in question.

105. The applicants did not comment on the objection raised by the Government.

B. The Court's assessment

1. General principles

106. The Court recalls that the presumption of innocence enshrined in Article 6 § 2 of the Convention is one of the elements of a fair criminal trial required by Article 6 § 1. The presumption of innocence is violated if an official statement concerning an accused person reflects a belief that he or she is guilty, even though his or her guilt has not previously been legally established. It is sufficient, even in the absence of a formal finding, for there to be a reasoned indication suggesting that the magistrate considers the person concerned guilty (see Allenet de Ribemont, cited above, § 35, Series A no. 308, and Marchiani v. France (dec.), no. 30392/03, 24 January 2006).

107. However, in view of the need to ensure that the right guaranteed by Article 6 § 2 is concrete and effective, the presumption of innocence has another aspect. Its general purpose, in the context of this second aspect, is to prevent individuals who have benefited from an acquittal or the discontinuance of charges from being treated by public agents or authorities as if they were in fact guilty of the offence with which they had been charged. Admittedly, in such situations, the presumption of innocence has already made it possible – through the application during the trial of the various requirements inherent in the procedural guarantee it offers – to prevent an unjust criminal conviction from being handed down. However, without protection to enforce in any subsequent proceedings an acquittal or a decision to drop the charges, the guarantees of a fair trial set out in Article 6 § 2 would risk becoming theoretical and illusory (Allen, § 94, and G.I.E.M. S.R.L and others, § 314, both cited above).

108. Whenever the question of the applicability of Article 6 § 2 arises in the context of subsequent proceedings, the applicant must demonstrate the existence of a link - such as the one referred to above - between the completed criminal proceedings and the subsequent action. Such a link may be present, for example, where the subsequent action requires a review of the outcome of the criminal proceedings and, in particular, where it obliges the court concerned to analyse the criminal judgment, to undertake a study or an evaluation of the evidence in the criminal file, to assess the applicant's involvement in any or all of the events leading to the indictment, or to comment on indications that continue to suggest a possible guilt on the part of the person concerned (Allen, cited above, § 104).

2. Application of these principles in the present case

109. The Court notes that the civil proceedings at stake in the present case concerned two claims by the applicants. The first sought compensation for the alleged damage to their reputation and their right to the presumption of innocence resulting, in their view, from the statements made by G.A. about them. The second was a ban on the sale of the book and documentary in question (see paragraphs 35-36 and 38 above). The proceedings therefore did not concern 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 before which the case was brought were not, in the present case, legally called upon to consider the content of the decision to shelve the case on 21 July 2008 (compare 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 the final instance (see paragraphs 54 and 58 above), it appears that it was in response to the arguments raised by the applicants in their appeal at the Supreme Court, 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 that had been placed in the criminal investigation files (compare Kaiser v. Austria (dec.), no. 15706/08, § 51, 13 December 2016) and that it only considered the grounds for shelving the case in order to base its decisions. In its judgments of 31 January 2017 and 27 March 2017, it then noted that the discontinuation of the proceedings against the applicants had been the result not of a finding of innocence but of a lack of conclusive evidence under Article 277 § 2 of the CPC (see paragraph 61 above) and that, in such circumstances, the criminal investigation could be reopened at any time if decisive evidence was gathered (see paragraphs 54 and 58 above - see also the principles set out in paragraph 44 of the Bikas v. Germany (no. 76607/13, 25 January 2018)).

111. Moreover, even assuming that Article 6 § 2 of the Convention was applicable to the civil proceedings in question in the present case, it does not appear that, in its judgments of 31 January 2017 and 27 March 2017, the Supreme Court did not make any comments suggesting any guilt on the part of the applicants or even any suspicion in relation to them 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. In light of these findings, the Court concludes that the applicants' complaint under Article 6 § 2 of the Convention concerning the reasoning of the Supreme Court's judgments is manifestly ill-founded within the terms of Article 35 § 3 (a) of the Convention and, as such, inadmissible. It must therefore be rejected under 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, and notified in writing on September 20, 2022, in application of article 77 §§ 2 and 3 of the regulations.

Ilse Freiwirth

Deputy Registrar

Gabriele Kucsko-Stadlmayer

President

[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 of September 2022 (French)

Defense of Gerry and Kate McCann will not appeal the decision that exonerates the Portuguese State in the case of the book by Gonçalo Amaral (Expresso newspaper/Portuguese)

"The only thing that didn't happen was an abduction" says Moita Flores about Maddie in a new documentary

joanamorais@gmail.com (Joana Morais) — Sun, 26 May 2019 21:53:00 +0100

frames from "Anatomia de um Mistério", RTP1, November 2, 2007, interview recorded in August 10, 2007

by Miguel Morgado

12 years of investigations, zero conclusions and two documentaries produced. This Sunday premieres "The Madeleine McCann Mystery". During two hours, Moita Flores, Gonçalo Amaral and Pinto Monteiro, among others, try to give an explanation to the most mediatic disappearance ever.

"I'm convinced that the only thing that didn't happen was an abduction. Something else has happened." This statement belongs to Moita Flores, the former Judiciary Police inspector, speaking about the disappearance of Madeleine McCann, on May 3, 2007, on Praia da Luz in the Algarve.

12 years later and without the investigation having reached any conclusions, the high-profile case of the missing British child has given origin to date to two documentaries. After Netflix, Investigation Discovery premieres 'The Madeleine McCann Mystery' on May 26 at 23:00, a date that coincides with the weekend in which is marked the International Day of Missing Children.

In the documentary, Moita Flores reinforces his belief that she was not abducted, admitting that it could have been an "accident", a "deliberate crime" and that there was an "enormous probability" that the "child died in Praia da Luz."

Speaking to SAPO24, he goes further in reading the case that has become a worldwide issue. Looking back at the memory of where everything happened, Moita Flores wonders how someone walks through the door and out the window when the door is open? For the former inspector "it's impossible to go out that window when the reconstruction of the disappearance is made. And there were no traces," he says.

He also reveals that "there was a tremendous mistake of the Portuguese authorities in not having constituted as arguidos the parents and the group of friends (eight couples - sic* 4 couples obviously)". He recalls that they were all "having dinner" and all left the children "alone" in a "strange country" and that such abandonment fulfills the "crime of exposure and abandonment" (article 138 of the Penal Code) which was "not considered" by the national authorities. "In England they would have lost their children," he states.

"It amazes me that 12 years later and in a case like this, the first ones to be investigated, in any case, are always the closest persons, the parents and the group of friends. In this concrete case, there were steps taken for the parents to not be disturbed", he emphasizes.

Referring to the fact that the parents "declined" to make statements, and that the group of friends also "did not make declarations", Moita Flores questions why the British government "spent millions of pounds" in this investigation and did not give "equal attention" to other missing children. "I think there's a secret behind it", he says.

"My removal was a political issue," says Gonçalo Amaral

Gonçalo Amaral, the former Judiciary Police inspector responsible for the case is another of the faces and voices of the documentary. Just like for Moita Flores for Gonçalo Amaral there was also "no evidence that pointed to an abduction. However, there was a need to continue the investigation," he argues when questioned on the two hours documentary, recalling that children's bed sheets looked "as if no one had slept on them".

Hypothesizing that both Maddie and the twin brothers were under Calpol, a medicine that helps them(children) fall asleep, the former inspector reinforces publicly again that they have come to the conclusion that "this would have been an accidental death" and has no doubts that the removal from the case that he was obliged "was a political issue."

With several testimonies including Pinto Monteiro, the then Attorney-General of the Republic, in a statement, the channel underlines that "The Madeleine McCann Mystery" dissects several lines of investigation that have been "known over the past 12 years, but were never conclusive. "

in Sapo24, May 23, 2019

Moita Flores on Maddie: "The only thing that did not happen was an abduction"
(article extract)

(...) For two hours, the program, scheduled for May 26 at 23:00, analyzes in depth every detail of the story, creating a chronological line from the moment Madeleine disappears, to actions taken by the authorities and to the efforts of the parents to find her. The documentary 'The Madeleine McCann Mystery' features testimonies from the main actors in the story. Gonçalo Amaral, former inspector of the Judiciary responsible for the case, Francisco Moita Flores, former inspector and Fernando Pinto Monteiro, Attorney General at the time, among others, are some of the protagonists of the story. The two-hour special also contains testimony from experts and US journalists who followed the case.

Gonçalo Amaral, as he did in the Netflix documentary, raises questions: "The bed sheets were as if no one was lying down and the blanket she used to sleep with was impeccably folded at the head of the bed. There was no evidence pointing to an abduction. However, there was a need to continue the investigation." But the inspector, who has made a lot of ink run throughout these 12 years, goes further.

"The twins were asleep and stayed like that for several hours, despite the noise inside the apartment. This lead us to believe that both Madeleine and the twins took a drug called Calpol, which helps children fall asleep. The children's grandfather admitted in an interview that Kate used to give to Maddie and the twins Calpol for them to fall asleep. The conclusion that we reached is that this would have been an accidental death".

Pinto Monteiro is another of the intervenients on the documentary.

"I closed the case when I confirmed that there was no new evidence. These crimes are very difficult to investigate. In this case my conscience is one hundred percent clean. There was nothing else I could have done. "

Moita Flores says he believes Madeleine McCann died in Portugal, in Praia da Luz. "I'm convinced that the only thing that didn't happen was an abduction. Something else happened. It may have been an accident, it may have been a deliberate crime, there may have been several things, but what is certain is that there is an enormous probability that that child died in Praia da Luz."

'The Madeleine McCann Mystery' premieres on May 26 at 11pm on the ID - Investigation Discovery, an exclusive NOS (TV/mobile operator in Portugal).

in Impala, May 23, 2019

Video excerpts

'The Madeleine McCann Mystery' ID Documentary tweeted

A thread by Joana Morais

"The only thing that didn't happen was an abduction" says Moita Flores about Maddie in a new documentary #McCann (joana-morais.blogspot.com/2019/05/the-on…)

Starting 'The Madeleine McCann Mystery' on ID - Investigation Discovery, NOS, so far the usual biased ppl & usual story: Mark William-Thomas, James Murray (Express), a poor tapas 9 actors re-enactment filmed somewhere but not in Praia da Luz #McCann (youtu.be/rV62rpomVOM)

Now, the infamous duo behind the book "looking for Maddie", Robbyn Swan, Anthony Summers, promoted by former Ceop Jim Gamble and Martin Brunt on that SkyNews/The Sun publicity stunt "hunt a troll" that targeted and harassed Brenda Leyland, who killed herself afterwards #McCann

a commercial break, so far the expected from the intervenients, up to now the story is on Maddie's disappearance and the immediate aftermath, the Tapas 9 statements incongruences had no mention #McCann

Now we're back with the duo, describing how Kate and Gerry met, the love affair, the children, the ivf treatment, Maddie's problems with sleeping as a toddler, the twins, hammering the idea that they are doctors hence cannot do any harm #McCann

Now back to Praia da Luz, Amaral appears for a couple minutes, we're back to the re-enactment, Jane Tanner sighting, filmed in a completely different setting with stairs. On the window, only Kate's fingerprints were found . #McCann

Now Amaral speaks about the bed sheets that looked as if no one had slept in them. More of the usual. This doc is so bad, only comparable to BBC Bilton's McCannorammas along the years. #McCann

Someone speaking about the fact that the Tapas 9 contacted the British media immediately, the story spread the next day becoming one of the highest profile disappearance cases ever. Now CM journalist João Mira Godinho with a tiny soundbite #McCann

Now a US media pundit? that has no clue about territorial police forces, going on about disputes between PT cops and English cops. The narrative is being changed, lots of omissions, people that never read the case files from US following the infamous duo story as gospel #McCann

Now Murat, the scapegoating of Murat continues on ID. Now the creation of the fund within 15 days, again no one mentions that it is a private limited company, not a charity. Money came in in droves, as well as fake tips around the world #McCann

Now the McCann Morocco trip, a publicity stunt where children were used for photo ops holding posters, just as odd as the Huelva trip, that hasn't been mentioned. Colin Sutton making some sense of this charade, a woman from the Met police clearly siding w/ former suspects #McCann

commercial break 🤔 interesting question https://t.co/CPzIqAZD1t clearly this is not for the Portuguese market, trying to sway the American public opinion, omitting critical information, facts, this narrative would not hold up if it had been shot at the OC in Praia da Luz #McCann

We've moved to July 2007, Colin Sutton explaining the cadaver dogs. Archive footage from the Sun with Martin Grime and his fab dogs alerting to only McCann items, apartment, sofa, plush toy, rented car. #McCann

Robyn Swan and William Hyphenated Thomas both trying to dismiss the cadaver dogs findings: "Martin Grimes took as indication" ,"the Portuguese police thought" Amaral points out that nothing pointed towards abduction #McCann

An US "expert" pundit? explains why the PJ thought the abduction story was false. Amaral explains the twins and Maddie Calpol thesis, the twins never woke up during the commotion, the cover up, the accidental death thesis. #McCann

I've lost something in the last couple minutes. Moita Flores was on, think he said something about the child definitely died in PdL. Now, the constitution of Kate & Gerry #McCann as arguidos, the refusal of Kate to answer the police questions hindering the search for her daughter

Since day one the #McCann family members defended the McCann couple, using sometimes spurious stories, like an alleged offer to Kate that never happened. The media stopped being so supportive.

The McCanns flee Portugal a few days later being constituted as arguidos, ie official suspects. Enters the machiavellian Clarence Mitchell spinning for the McCanns in Rothely. #McCann

commercial break, so far nothing new, plenty of omissions, deliberate no doubt. All paths lead to Robbyn Swan, Anthony Summers and dare I say, Jim Gamble. In the background, playing the American public as puppets, Team #McCann itself.

Now the screw up of the extinct British FSS DNA analysis, tests came back inconclusive. Again narrative changes, blaming the Portuguese "sardine munchers". Amaral is removed from the investigation, political pressures, Brown & Socrates pact. #McCann

Enters the archival man, Paulo Rebelo. Investigation is archived. Pinto Monteiro speaks, the former AG, he has clean conscience. McCanns and Murat stopped being arguidos, but were never exonerated in a court. #McCann

They point out the McCanns had no assistance from the authorities from that point on, not explaining that during the years before Operation Grange started they could have forced the re-opening of the case in Portugal by doing the reconstruction the PJ had requested #McCann

Now the McCanns appeal to David Cameron, Theresa May (former HO secretary) via The Sun/Brooks alleged pressure (see exaro story https://www.exaronews.com/rebekah-brooks-set-out-to-persuade-government-over-review), Metropolitan Police opens Operation Grange, it was a politically motivated review. #McCann

Metropolitan Police is now likened to the FBI, William Hyphenated Thomas blames contamination on the PJ. An US woman says the cell communications were never investigated, which contradicts what appears in the Public PJ case files available #McCann (mccannpjfiles.co.uk/PJ/DELETED_CAL…)

Operation Grange comes up with 38 persons of interest. An aside, the real farce is that all the persons of interest that have been exposed in the media throughout the years , thanks to OG, had been already investigated by PJ years before and dismissed. #McCann

Now an US expert applies the societal parameters of the United States of Crime to a Portuguese fishing village. Williams Hyphenated Thomas & Summers scream at one voice: "PAEDOPHILES! PAEDOPHILES" courtesy of Jim Gamble or the other rent-a-cop Dave Edgar I suppose. #McCann

Now, the story that no ONE in the English expat community ever reported to the GNR or the PJ not even to the English newspapers in the Algarve region of a burglar, that only attacked English girls. A Metpolice/OG press release that mysteriously disappeared from their site & FB.

Now the story of the 4 alleged burglars, 2014 story, MetPolice without any care for the Portuguese citizens rights asked on the rogatory letter to the PJ to get their DNA secretly, see
#McCann (joana-morais.blogspot.com/2014/07/englis…)

Now footage of an interview with the #McCann couple on the 10th anniversary with emotive induced music in the background. Now William Hyphenated Thomas finally saying something that everyone knew, burglars do not steal children.

Now Andy Redwood's revelatory moment, the sighting by Jane Tanner wasn't the "abductor" after all. William Thomas says that he spoke to Mr. Smith who believes the man he saw was Gerry McCann. WT dismisses Mr. Smith identification.

Now the same lady from MetPolice, or former Metpolice, praising OG thousand steps that led to nowhere and are basically a replication of the investigation done by the Portuguese Judiciary Police. OG was scaled down, rightly so, a farce. #McCann

Now a few words of hope from Summers and from the former MET police lady. Colin Sutton highlights the odd situation of an investigation that does not follow all leads, specifically doesn't look at those closer to the victim, i.e. Maddie #McCann.

The end is with the same footage of the 10th anniversary interview given by the McCanns to? BBC possibly, with emotional music in the background. No conclusions, plenty of omissions, distortions, a biased narrative. //Ends #McCann

Rua Segura: Maddie Case

joanamorais@gmail.com (Joana Morais) — Thu, 9 May 2019 18:16:00 +0100

Video

Transcript

Magali Pinto (Rua Segura's Anchor in the studio) - A new lead and a new suspect which the Judiciary Police (PJ) are trying to keep under the utmost secrecy have lead for more resources to be granted to the search for Madeleine McCann. The abduction hypothesis is back on the table. Nevertheless, the authorities have plenty doubts the girl is still alive.

Magali Pinto (Voice over old footage of the McCanns) - Kate and Gerry McCann have released a short statement in the social media, in relation to the 12 years marking Madeleine's disappearance. The British couple said that despite everything there is “comfort and reassurance“ since the investigation continues.

Magali Pinto (Voice over CMTV's reconstruction broadcast in 2013¹) - Gerry and Kate never accepted to do a reconstruction of the night, but CMTV did one using actors. It's a detailed reconstruction that allows to draw conclusions.

Magali Pinto (back to the studio/new hidden camera footage showing the apartment from the Tapas bar area) - The disappearance of Madeleine took place in an apartment of the Ocean Club, CMTV has footage recorded with a hidden camera that shows the place where the mystery started.

Opening title sequence (from 0:59 to 1:14)

Magali Pinto (in the studio) - Good evening, twelve years after a disappearance that resounded worldwide, there are new leads considered as credible by the Judiciary Police, which have even lead the PJ to reinforce the team with more police inspectors to search for Madeleine McCann, who, if alive would be 15 years-old. The details of the current phase of the investigation and exclusive images of the Ocean Club, in a few moments in Rua Segura. Before that, Kate and Gerry McCann made a short statement today, 12 years after their daughter disappearance. The little girl was three years-old when she disappeared without a trace, in contrast to other years where the couple gave televised interviews, this year they have chosen to write on the social media. Kate and Gerry state that, and I quote: “It’s that time of year again. As much as we’d like to fast forward the first couple of weeks of May, there’s no getting around it. The months and years roll by too quickly; Madeleine will be sixteen this month. It’s impossible to put into words just how that makes us feel“. Nevertheless, the parents say: “There is comfort and reassurance though in knowing that the investigation continues and many people around the world remain vigilant. Thank you to everyone who continues to support us and for your ongoing hope and belief“, in the end Kate and Gerry added the search will go on “for as long as it takes”.

There's a new suspect and the abduction hypothesis is back on the table. There are new leads considered as credible by the Judiciary Police, these have lead the PJ to reinforce the investigative team that searches for Maddie, who if alive would 15 years-old today.

(Cut to news report/ Unknown Man's VO) - After 12 years of investigations, the Judiciary Police seems to have a new lead concerning what happened on the 3 of May of 2007 in Praia da Luz. The team of investigators was reinforced. The process was opened, with public access, and now is once again sealed. There are new lines of investigation, one new suspect. The police follows once again the possibility of an abduction.

(Unknown Women's VO/showing Public Prosecutor's Office i.e. Public Ministry reply to CMTV) - "You are hereby notified, as an applicant, that since the current inquest still has active lines of investigation, the Public Ministry understands that at this moment its divulgation may undermine the interest of achieving justice (...)"

(Unknown Man's VO) - The Public Ministry of Portimão, asserts that the open knowledge of who the suspects are, may compromise the clarification of the case and prevent whatever happened to child to be determined. Alive or dead, the Judiciary Police wants to close this process.

(Tânia Laranjo, CMTV/CM journalist) - In 2004 Joana Cipriano² disappeared, it was investigated here by the Public Ministry of Portimão, it was also here that mother and uncle were tried and convicted and in fact they have already served their prison sentences ³. Three years later, it was Madeleine McCann, the English little girl, that disappeared in Praia da Luz, the process also came here to the Public Ministry of Portimão. These two cases have in common the fact that both children whereabouts is unknown.

(Unknown Man's VO) - It was the second case in the Algarve where the answers were missing, in Maddie's case no one gave up. The process ended up being archived, and then re-opened, it was public and now is once again sealed. It was then sent to Porto, to be analysed by another team, that it was now reinforced with more resources. The PJ admits that they may be able to shed light on the mystery, they believe they can prove what happened to Maddie.

Magali Pinto (back in studio) - The window of the bedroom where Madeleine McCann was staying with her twin brother and sister is a key factor in the abduction thesis. A thesis pulled apart, in fact, by Gonçalo Amaral, the first Judiciary Police inspector in charge of the investigation to Madeleine's disappearance, who always held the parents as guilty.

(Cut to CMTV's Maddie, the Enigma, broadcast in May 2017) - Still, within the thesis of the eventual abductor, the window also becomes a dead-end.

Gonçalo Amaral - This is the window of the bedroom where the children were. Madeleine and her twin brothers were inside, sleeping. Near to this window there were two cots, where the twins slept, and closer to the door was Madeleine's bed. What it's said relatively to this window is that, in fact it's more the mother of the missing child that says that, when she went inside - she's a bit like Jane Tanner, her statements improve, become more detailed along the years - if you notice what she states to the police and then what she says, for example, on the Oprah Show in 2009, three's a huge difference. The biggest difference is, that she says she goes inside the apartment, that everything is quiet, very peaceful, and when she's about to come out, she hears - notice she didn't go inside the bedroom - she hears a door closing and she goes to check... So, she came in worried to check the children yet she didn't check them and was already on her way out, and when she was leaving she sees the window open, the curtains to the side (opened), and looks to her side and sees that her daughter is missing.

(Cut to McCanns on Oprah Show in 2009) Kate McCann - I went at ten and I went into the apartment and there was no crying. I stopped and there was no crying. And then I just noticed that the door was quite open.

Oprah - Which door?

Kate - Their bedroom door, sorry, and we usually have the door as Gerry said, sort of not closed but ajar just so that a little bit of light gets in and it's not too dark in the room so I thought: "Oh Matt must have gone in and left the door open".

Oprah - Same thing he thought.

Kate - Yeah, so I thought well, I'll just close it over again, and as I went to close it over it slammed shut and I thought and it was like sort of you know a draft had caused it to shut. So, I turned behind me and I thought: "are the patio doors open?" and they were closed and I thought: "Well, that's strange". So, then I opened the door thinking: "I think I'll open it ajar a bit again" and that was when I kind of looked into the room. And I just looked and it was quite dark, and I was just looking, and looking at Madeleine's bed and I was thinking: "Is that her?". I was looking for and: "Why isn't Madeleine there?" And then in the end I walked over and thought: "Oh, she's not in bed". And then I thought: "Maybe she's wandered through to our bed", and that's why the door's open. So, I went through to our bedroom and she wasn't there, and then I kind of see then that I'm starting to panic a bit and I ran back into their room, and literally as I went back into their room the curtains that were drawn over just "woosh" flew open and that's when I saw that the shutter was right up and the window was pushed right open. And that was when I just knew that someone had taken her.

(Cut to Gonçalo Amaral, CMTV's 2017 footage) - She then says that her reaction is to search underneath the beds, search everywhere for her daughter, the beds are sommiers, were sommiers, one couldn't search underneath the beds. And then, what does she do after searching? She doesn't phone call anyone, she doesn't go to the veranda of the other side from where she gained access to the apartment, to scream for the help of her husband or friends who are a few meters away having dinner. She lunged in the direction of those friends, leaving behind the other two children. Which is strange. The children were asleep and went on sleeping. From that point on, several people go inside the apartment. At 22:30 the upstairs neighbour hears the mother of the children ⁴ saying: "We let her down". She goes to the window of the other side and speaks with the father of the children, and the father of the children says, and she was actually surprised with that: "a child is missing". He doesn't say: "My daughter disappeared", he said a child disappeared. This is in the statements of that woman who was surprised with what they told her. She also offered them her phone to call the authorities, but they said they had already called them. But the fact what happens here, those twin brother and sister, those children were left behind. They had already been left alone with their eldest sister, the sister disappears and they were once again left all alone, the mother comes to check on them, sees them there and leaves them once again all alone. They were asleep, they went on sleeping until the police arrived, everyone, lots of noise inside the apartment, other witnesses and Ocean Club employees, and still sleeping they were carried to the other apartment, an apartment to where they were taken later. Still sleeping. Later on we came to learn that the mother had spent the whole night checking the children's breath, by placing her hand over their noses and mouths, to see if they were still breathing. Something that is a little weird.

(Off camera CMTV journalist) - And what does that suggest then, in your opinion?

Gonçalo Amaral - It suggests she could know that they had been sedated, or similar. And that she was afraid that something could happen to them as eventually may have happened to the missing child. Let's not forget that they had an antihistamine called Calpol, which, according to witnesses was given to the children so they would sleep.

ongoing, sorry for delay

Notes
1 - CMTV's reconstruction , broadcast in 2013, Part I and Part 2, translations by Zizi and Paula
2- Supreme Court of Justice - 'Joana case' ruling - Part I and Part 2
3 - Leonor Cipriano and her brother, João, were both released on probation on the 7 of February and March 11 of this year, respectively after five-sixths of their prison sentences was fulfilled. (Portuguese Penal code, Article 61, sub. 5 "Without prejudice of that which is ascribed in the previous number, the convict sentenced to a penalty superior to 6 years is set on probation as soon as he has fulfilled five sixths of the penalty & sub. 6 "In whatever modality, the probation has a duration equal to the time of prison which is yet to be fulfilled, but never superior to 5 years").
4 - Gonçalo Amaral never refers to Kate McCann by her name, same with Gerry.

Rua Segura T19 89, May 3, 2019, broadcast by CMTV