Communicated on 1 February 2018
FOURTH SECTION
Application no. 65666/16
Luís Armando GONÇALVES MONTEIRO
against Portugal
lodged on 5 November 2016
STATEMENT OF FACTS
The applicant, Mr Luís Armando Gonçalves Monteiro, is a Portuguese national, who was born in 1953 and lives in Valadares. He is represented before the Court by Mr P. Alhinho, a lawyer practising in Porto.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The circumstances of the disappearance of the applicant’s daughter
On 17 February 2006 around 9:00 a.m. R., the applicant’s daughter, was left by her mother at a bus stop in Matosinhos, from where she was due to take a bus to go on a study visit to Porto.
On 18 February 2006 (a Saturday) at 11:41 a.m. R.’s mother reported her disappearance to the Public Security Police (“PSP”), informing them that her daughter had psychiatric disorders.
On that same day the PSP made a proposal to insert R. in the SIRENE National Cabinet database (national entity responsible for the Schengen Information System) and filled out a broadcast record for the disappearance of an “adult with mental disorders”.
On 18 February 2006 around 2:27 p.m. the applicant also reported R.’s disappearance to the Judiciary Police (“JP”) stating that at the time his daughter carried with her only her clothes, mobile phone and wallet with a bank card that had not yet been used.
On 19 February 2006 the applicant declared before the JP that R. was without medication since 17 February 2006, which constituted a danger for her mental balance. He also presented an e-mail from R.’s private psychiatrist, who declared that she suffered from psychiatric disorders that made her a danger to herself.
On 21 February 2006 the JP asked the Public Prosecutors’ Office to order R.’s mobile phone location.
2. Criminal proceedings
On 22 February 2006 the Gaia Public Prosecutors’ Office opened a criminal investigation into R.’s disappearance and ordered the tracking of R.’s mobile phone location, which appeared to have been turned off or lost signal on 18 February 2006 at 2:46 p.m.
The same day, following information from the applicant, the JP carried out investigations to determine the whereabouts of an individual with whom R. allegedly had been seen.
On 24 February 2006 the JP analysed the video surveillance cameras of buses that R. might have taken before 9:30 a.m. It was possible to see in one of the recordings that on 17 February 2017 at 9:15 a.m. R. had entered a café located near Matosinhos Market.
On an unknown date the applicant talked to the café employees who were working on 17 February 2006. They confirmed that R. was in the café that day but did not give any useful information about her whereabouts. On an unknown date the applicant informed the police about this conversation. The investigation authorities did not question the café employees who had seen R. on the 17 February 2006.
On an unknown date the applicant gave the police a picture taken at 9:24 a.m. by a video surveillance camera from one of the buses, from which it was possible to recognise R. with an unknown woman. According to the applicant’s submissions, the JP did not take any steps to identify the unknown woman and did not analyse the video surveillance cameras of buses that passed through Matosinhos Market after 9:30 a.m.
On 25 February 2017 the mobile phone operator identified the international airport of Porto as one of the locations where R.’s mobile might possibly have been when the time signal was lost.
On 27 February 2006 the JP asked the Lisbon, Porto and Coimbra Institutes of Forensic Medicine if R.’s corpse had entered their facilities for identification.
On 03 March 2006 the JP questioned the Central Hospitals of Porto about the whereabouts of R.
During the criminal investigation the police investigated – between 17 February 2006 and 11 September 2011 - at least 24 sightings (avistamentos) of R., throughout the country and abroad, which did not result in any concrete lead about her whereabouts.
On 12 March 2006 a JP inspector registered in the case file that he contacted several of R.’s friends and that none of them mentioned her desire to leave her parents’ home.
On 18 April 2006 M., R.’s private psychiatrist, provided a written statement that she had been diagnosed with “schizophrenia psychosis”, was on medication and that the absence of such medication could lead to suicidal behaviour if not treated.
On 20 November 2006, following information from the applicant, the JP questioned S., one of R.’s friends.
On 30 November 2006 the JP questioned M., R.’s psychiatrist, who declared that one or two days before the disappearance she had an appointment with R. and her parents to establish the need to continue monitoring her activities and medication in order to avoid hospitalisation. The psychiatrist also stated:
“R. suffers from psychotic disturbances and severe mental imbalances that lead to an unpredictability of the logic of her reasoning. She had frequent auditory hallucinations (heard orders) that she could not escape and had to comply with (for example, throw yourself into the sea). In view of this impulsive (self-destructive) behaviour and taking into account that patients with this type of psychiatric disorders have a high suicidal rate, it is highly likely that R. has committed suicide.”
On 30 November 2006 the JP inspector registered in the case file that the last phone call made by R. was on 17 February 2006 at 9:16 a.m. to a school friend, J.M., to know where she and other students were so she could join them.
On 16 April 2009, 27 April 2009 and 05 May 2009 the applicant, R.’s brother and mother were questioned in the criminal proceedings and on 05 May 2009 R.’s room was examined by the JP.
Between 07 May 2009 and 09 November 2009 the JP questioned the following persons: R.’s school director, at least six of her friends and fellow students, two other psychiatrists with whom she had had appointments (Z. and R.M.), an employee from the mobile phone operator and her mother’s housekeeper.
After realising that R.’s disappearance was not registered in SIRENE, on 28 May 2009, the JP inserted her profile in SIRENE, SIS and Interpol databases.
On an unknown date R.’s mother’s partner was questioned.
On 26 June 2009 the JP issued International Judicial Cooperation requests to Spanish, French and Dutch authorities in respect of R.’s location and on an unknown date about the location of her mobile phone.
On 25 February 2010 the JP asked the Meteorology Institute for information regarding the weather and sea conditions on 17 February 2006 and 18 February 2006.
On unknown dates the Forensic Police Lab (Laboratório de Polícia Científica da Polícia Judiciária) conducted several facial comparisons tests (exames de comparação facial) between R.’s photos and photos of young women that looked like R. taken from the internet and also sent by the applicant. The Forensic Police Lab did not reach any positive result.
On an unknown date the JP checked the identity of all the mobile phone users who contacted R. between 29 September 2005 and 18 February 2006.
On 15 May 2016 the Prosecutor discontinued the investigation on the grounds that there were no more investigative measures to be taken in order to find the applicant’s daughter. It concluded:
- as to the possibility of suicide or an involuntary disappearance caused by an accident: that several steps had been undertaken in order to find the corpse, to no avail;
- regarding the possibility that R.’s disappearance was voluntary and that she wanted to live independently from her family: that she was not autonomous and could not survive without the medication and that there was no evidence that she had agreed to run away with anyone. Several steps had been taken to locate R. through mobile phone data and international judicial cooperation;
- as for the possibility that she had been the victim of a crime (abduction or murder): no evidence had been found of signs of enmity or desire for revenge, nor which could lead to an investigation for trafficking of human beings or to the possibility of murder following robbery or sexual abuse.
3. Administrative proceedings
On 18 December 2009 the applicant lodged administrative proceedings before the Porto Administrative Court (Tribunal Administrativo e Fiscal do Porto) against the Portuguese State under the State Liability Act (ação de responsabilidade civil extracontratual), seeking pecuniary damage of 50.000 euros (EUR) and non-pecuniary damage of 1.000.000 EUR.
The applicant claimed that some of the investigation steps taken to locate his daughter’s mobile phone were not prompt and suffered irregularities and that other steps were not taken immediately or were not taken at all.
On 26 February 2013 the Porto Administrative Court ruled against the applicant. It found that the authorities did not breach their duty to investigate and concluded that there had been no irregularities or delays concerning the mobile phone location. Thus, there had been no unlawful action. It further noted that the applicant reported R.’s disappearance more than 24 hours after it had occurred and only a few minutes before the mobile was turned off or lost signal, so there was no causal link to sustain the damages claimed.
Moreover it pointed out that R. was not a minor and that there was no evidence to suspect that a crime had been committed.
Furthermore the court concluded that at the time of her disappearance R.’s parents had not started a prohibition or incapacitation proceeding (interdição ou inabilitação) on account of a mental disorder.
On an unknown date the applicant appealed to the Administrative Central Court of the North, claiming that the first-instance court had wrongly assessed the evidence, that its findings of fact had been incorrect and that it had wrongly interpreted the law.
On 28 April 2016 the Administrative Court of Appeal ruled partially in favour of the applicant by changing the findings of the facts. Nevertheless it upheld the legal findings of the Porto Administrative Court.
B. Relevant domestic law and relevant international texts
1. Legislative Decree no. 48051 of 21 November 1967
Legislative Decree no. 48051, in force at the time the domestic proceedings were instituted by the applicant, governed the State’s non-contractual civil liability. It contained the following provisions of relevance to the instant case:
Article 2 § 1
“The State and other public bodies shall be liable to compensate third parties in civil proceedings for breaches of their rights or of legal provisions designed to protect the interests of such parties caused by unlawful acts committed with negligence (culpa) by their agencies or officials in the performance of their duties or as a consequence thereof.”
Article 4
“1. The negligence (culpa) of the members of the agency or of the officials concerned shall be assessed in accordance with Article 487 of the Civil Code.
2. If there are several responsible persons, the provisions of Article 497 of the Civil Code shall apply.”
Article 6
“For the purposes of this Decree, legal transactions which infringe statutory provisions and regulations or generally applicable general principles, and physical acts which infringe such provisions and principles or the technical rules and rules of general prudence that must be observed, shall be deemed unlawful.”
2. Portuguese Civil Code
The relevant provisions of the Portuguese Civil Code read as follows:
Article 114
Requirements [of Presumed death]
Ǥ1. Ten years after the date of the last news, or after five years, if in the meantime the absent person has reached the age of eighty, the interested parties (...) may request a declaration of presumed death.
§2. Presumed death can only be declared five years after the date in which the absentee, if alive, would reach majority age. (...)»
Article 115
Effects
«The declaration of presumed death produces the same effects as death, but does not dissolve the marriage.»
COMPLAINTS
The applicant complains under Articles 2, 5 and 13 of the Convention that the investigation into his daughter’s disappearance was ineffective, in particular that it was characterised by delays and omissions for the following reasons: (i) the insertion of the disappearance into the SIRENE database was delayed; (ii) the authorities did not take any investigation measures as regards Porto’s International Airport and did not analyse the video surveillance cameras of buses that passed through Matosinhos Market after 9:30 a.m.; (iii) the person who reported sighting the applicant’s daughter on 17 March 2006 was not questioned; and (iv) the authorities did not analyse her computer.
The applicant also complains that there were some time periods in the proceedings in which no investigation steps were taken and that the investigation did not take into account the applicant’s daughter’s vulnerability nor assess the risk to her life.
QUESTIONS TO THE PARTIES
1. Has there been a violation under the substantial limb of Article 2?
In particular,
1.1. Was the applicant’s daughter in a life-threatening situation at the time of her disappearance (İlhan v. Turkey, no. 22277/93, § 75, 27 June 2000)?
1.2. Is there a presumption of death in regards to the applicant’s daughter (Osmanoğlu v. Turkey, no. 48804/99, §§ 56-57, 24 January 2008 and Dodov v. Bulgaria, no. 59548/00, § 68, 17 January 2008)?
1.3. Was there a sufficient and adequate domestic legal framework regarding the disappearance of persons and namely persons with psychiatric disorders?
1.4. Were the authorities under an obligation to take steps to protect the applicant’s daughter’s right to life (Osmanoğlu v. Turkey, cited above, §§ 76-77)?
1.5. Did the authorities take into account the vulnerability of R. as a person with psychiatric disorders (Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010)?
2. Having regard to the procedural protection of the right to life, was the manner in which the investigation authorities conducted the criminal proceedings in breach of Article 2 of the Convention (Dobriyeva and Others v. Russia, no. 18407/10, § 71, 19 December 2013; Mustafa Tunç and Fecire Tunç v. Turkey, no. 24014/05, §§ 169-181, 14 April 2015)?
Considering the undated investigation steps described in the facts, the parties are requested to specify dates and provide supporting documents whenever possible.
The Government are also requested to submit the reports issued by the JP Inspector to the Coordinator for Criminal Investigation describing all the investigation steps that were taken, namely the reports issued on 22 October 2008, 26 May 2009 and 30 December 2009.
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