CEDH · CASELAW;CLIN;ENG — 15 mars 2022

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Portugal - 65666/16 Judgment 15.3.2022 [Section IV] Article 2 Positive obligations Immediate and appropriate action by the authorities to trace a missing 18-year-old woman with schizophrenia and suicidal tendencies: no violation Article 2-1 Effective investigation Lack of promptness and effectiveness of the investigation into the disappearance of a young woman with schizophrenia and suicidal tendencies: violation Facts – R. was an 18-year-old woman who suffered from schizophrenia. At the time of the events, the medical treatment she was receiving enabled her to live independently. On 17 February 2006 R. went missing after her mother had dropped her off at the school bus. Her body has never been found. The applicant, R.’s father, alleged that the authorities had failed to make sufficient efforts to find his daughter alive and to elucidate the circumstances of her disappearance. Law – Article 2: The more time that elapsed without news of a missing person, the more likely it was that he or she had died. The three psychiatrists who gave evidence during the investigation all agreed that R. had been at imminent risk of committing suicide owing to her illness. Accordingly, R. could be presumed to have died. a)   Applicability – The present case bore similarities to that of Dodov v. Bulgaria , which concerned the disappearance of a person suffering from Alzheimer’s disease. In that case the Court found that a potentially dangerous situation had existed falling within the scope of Article 2 of the Convention, given that the person concerned had gone missing while she was living in a nursing home where she had needed constant supervision. R., on the other hand, had not been in hospital. At the time of the events she had been leading a fairly ordinary life, living with her mother and attending school. Nevertheless, it could be said that there had been a real and immediate risk to her life in view of her mental disorder and the fact that since her disappearance, which had been reported to the competent authorities, she had no longer been taking the medication that enabled her to live a stable and independent life and avert the threat of suicide. Conclusion : Article   2 applicable. b)   Substantive aspect – It had to be ascertained whether the domestic authorities had known that there was a real and immediate threat to R.’s life and whether they had taken prompt and appropriate action to prevent that risk from materialising and to find her alive. The applicant and his ex-wife had gone to the police station on 18   February 2006 to report their daughter’s disappearance, and had informed the police of her mental disorder. On the evening of 19 February 2006 the applicant had provided the police and the criminal investigation department with more detailed information on the severity of his daughter’s disorder, substantiated by an email from her psychiatrist. He had also alerted them to the fact that she had not taken her medication for over 24 hours and that this posed a threat to her mental stability. At that point, the authorities had learned of the existence of a real and immediate threat to R.’s life. However, even before being made aware of that risk the authorities had issued an alert to the law‑enforcement agencies informing them of the disappearance of an adult suffering from a mental disorder. The police had also immediately requested the SIRENE office to enter R. as a missing person in the Schengen information system so that a Europe-wide search could be carried out. It therefore appeared that the young woman’s mental disorder and the concern caused by her disappearance had been taken into consideration by the police from the outset. On 20 February 2006 the criminal investigation department had informed the public prosecutor’s office of R.’s disappearance, requesting that urgent action be taken to trace the whereabouts of her mobile phone. That request had been accepted on 22   February. On 24 and 25   February 2006 the service provider had acted on the request by supplying the location of the mobile phone masts with which R.’s phone had communicated on 17 and 18   February, together with a list of the calls made and received by the phone, and stating that the phone had lost the network signal on 18   February 2006 at 2.46   p.m. Therefore, R.’s mobile phone could no longer be tracked from that point onwards. On 22 and 24 February 2006 the criminal investigation department had taken follow-up action on two reports received by it. On 24 February officers from the department had also viewed security camera footage of the location where R. had been dropped by her mother, and had had a conversation with the bus driver. In March 2006 the department had contacted the major hospitals and telephoned R.’s friends. Between April and October 2006 the authorities had responded to fresh reports. Lastly, in June 2006 they had searched for R. in the part of town where she had got off the bus and had carried out an investigation in a different town. The measures taken with a view to finding R. alive after she had been reported missing had been appropriate to the circumstances of her disappearance. This finding also took into account the practical realities of daily police work and the fact that the applicant had conducted his own search in parallel and had reported any developments to the police. It was understandable that the applicant would have wished the authorities to do more to find his daughter. Nevertheless, in the circumstances of the case there was nothing to demonstrate that further measures aimed at preventing the real risk to R. from materialising would have served any purpose, given the unpredictable nature of her behaviour according to the psychiatrists who gave evidence in the criminal investigation. Hence, it did not appear in the present case that the domestic authorities had failed in their positive obligation to protect R.’s life. Conclusion : no violation (unanimously). c)   Procedural aspect – There was an important distinction to be drawn in the Court’s case-law between the obligation to investigate a suspicious death and the obligation to investigate a suspicious disappearance. It could not be said that a disappearance was simply an “instantaneous” act or event; the additional distinctive element of subsequent failure to account for the whereabouts and fate of the missing person gave rise to a continuing situation, with the procedural obligation potentially persisting as long as the fate of the person was unaccounted for. The ongoing failure to provide the requisite investigation would be regarded as a continuing violation, even where death could eventually be presumed (see Varnava and Others v. Turkey [GC]). The Court therefore had to ascertain whether, in a situation where it was increasingly likely that R. had died, the authorities had carried out an effective investigation in order to establish the circumstances. On 22 February 2006 the public prosecutor’s office had ordered the opening of missing-person proceedings. On 24 and 25 February 2006 the criminal investigation department had received the phone tracking data from the masts with which R.’s phone had communicated on 17 and 18   February 2006, and on 1 March 2006 the service provider had provided further details concerning one of those masts. Despite the significance of this information, however, the criminal investigation department had not taken any investigative steps to follow up on it. In fact, it had not seriously attempted to understand the information and act upon it in a more meaningful way until May 2009, although the scenario of suicide had appeared plausible as early as November 2006, after R.’s psychiatrist had given evidence. It was not until four years after R.’s disappearance, following the details provided to the criminal investigation police by an employee of the telephone service provider, that it was established that the mobile phone had communicated for the last time with a mast in a certain town and had not moved subsequently. Furthermore, it was only then that practical steps had been taken in that regard, in particular to establish what conditions had been like at sea on the day of R.’s disappearance and whether there was a well in the vicinity which she could have fallen into. Although R.’s friends had been contacted by telephone between March and November 2007, R.’s family and social contacts had not been properly examined until 2009; taking evidence at an earlier stage from R.’s relatives and friends would have been a significant step. The authorities had not ordered a forensic expert report so as to obtain information from R.’s computer and thus add to the results of the applicant’s search efforts. Authorisation to examine R.’s emails had not been requested until 30 December 2009. R.’s room had not been searched until 5   May 2009, by which time it had been converted into a storage area and R.’s mother had only a few remaining personal effects belonging to her daughter. No thorough and comprehensive investigation aimed at establishing the circumstances of R.’s disappearance had been carried out until 2009. The delay on the part of the investigating authorities, in a situation where the scenario of death by suicide appeared increasingly likely, had compromised the gathering of physical evidence that might have shed light on the circumstances surrounding the disappearance. The investigation had therefore not satisfied the requirements of promptness and effectiveness. Conclusion : violation (unanimously). Article 41: EUR 26,000 for non-pecuniary damage. (See also Tahsin Acar v. Turkey [GC], 26307/95, 8   April 2004, Legal summary ; Dodov v. Bulgaria , 59548/00, 17 January 2008, Legal summary ; Varnava and Others v. Turkey [GC], 16064/90 et al., 18   September 2009, Legal summary ; Gaysanova v. Russia , 62235/09, 12   May 2016)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes