Journalists and publishing companies
RELEVANT LEGAL FRAMEWORK AND PRACTICE The Civil Code 33. The relevant provisions of the Civil Code read as follows: Article 70 “The law shall protect individuals against any unlawful interference or threat of harm to their person or character.” Article 484 “Anyone who states or spreads [knowledge of] a fact that is capable of harming the reputation of another natural or legal person shall be liable to pay damages.” Article 494 “When liability results from negligence, the compensation may be set at a lower value than that which corresponds to the damage caused, as long as the degree of fault [ grau de culpabilidade ] of the perpetrator, the economic situation of the victim and the remaining circumstances justify this.” The Criminal Code 34. The relevant provisions of the CC read as follows: Article 11 § 1 Liability of individual people and legal entities “Except as provided in the following paragraph and in cases specifically provided for by law, only individuals may incur criminal responsibility.” Article 180 Defamation “1. Anyone who, when addressing a third party, accuses another, even if the accusation takes the form of a suspicion, or makes a statement that casts aspersions on the honour of another, even when repeating an accusation or statement, shall be liable on conviction to a maximum of six months’ imprisonment or 240 day-fines. ...” Article 183 Public disclosure and slander “1. If in the case of the offences provided for in Articles 180, 181 and 182: (a) the offence is committed by means or in circumstances that facilitate its disclosure; or (b) in the case of imputation of facts, if it is ascertained that the offender knew that the imputation was false, the minimum and maximum penalties for defamation or insult shall be increased by one-third. 2. If the offence is committed through the media, the offender shall be punished with a prison sentence of up to two years or not less than 120 day-fines.” Article 187 Insulting a public body or service or a legal entity “1. Anyone who, without having grounds to do so in good faith, regards as truthful, affirms or propagates false facts capable of offending the reputation, prestige or trust that are owed to a body or a service that exercises public authority, a legal entity, an institution or a corporation, shall be liable on conviction to a maximum of six months’ imprisonment or 240 day-fines. 2. The following shall consequently apply: (a) Article 183; ...” Article 371 § 1 Violation of judicial confidentiality “Anyone who, regardless of having had direct contact with the proceedings, unlawfully shares, in its entirety or in part, the contents of an act relating to criminal proceedings which is protected by judicial confidentiality, or which is not open to the general public, shall be punishable by a prison sentence of up to two years or by the payment of up to 240 day-fines ...” The code of criminal procedure 35. At the material time, the relevant provisions of the Code of Criminal Procedure read as follows: Article 400 § 1 (e) Decisions that are not amenable to appeal “1. The following decisions are not amenable to appeal: ... (e) Judgments given on appeal by courts of appeal which impose a penalty not entailing deprivation of liberty [ pena não privativa de liberdade ]. ...” Other relevant material 36. The relevant provisions of the statutes of the ASJP and the SMMP read as follows: Section 3 of the ASJP statutes (Objects) “1. The ASJP shall have as its objects: ... (d) making proposals to the competent authorities on reforms to improve the judicial system and asking to be consulted on all reforms in such matters; ...(g) communicating the views of judges externally on all aspects relevant to the defence of the image, prestige and dignity of the judiciary; ...” Section 6 of the SMMP statutes (Objectives) “The professional association shall pursue the following objectives: ... 2. to defend the interests of public prosecutors, specifically with regard to their socio-professional status; 3. to fight for the dignity of the public prosecutor’s office and for the improvement and democratisation of the judicial system; ... 6. to be consulted on the drafting of laws within the judicial system and to make proposals to the competent authorities on the necessary reforms for the improvement of the judicial system and the delivery of justice.” Domestic practice 37. Domestic case-law has clarified that Article 187 of the CC (see paragraph 34 above) is only applicable to the dissemination of false facts and not to value judgments (see the domestic judgments cited in Pinto Pinheiro Marques v. Portugal, no. 26671/09, § 22, 22 January 2015). THE LAW Locus standi 38. The Court notes that Ms Ana Sofia Pereira Rangel and Ms Catarina Matias Rangel expressed the intention to pursue the application on behalf of the applicant, who had died in the course of the proceedings (see paragraph 2 above). The Government did not comment on this matter. Having regard to the close family ties and the heirs’ legitimate interest in pursuing the application, the Court accepts that the deceased applicant’s heirs may pursue the application in his stead (see, amongst many other authorities, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII, and Pais Pires de Lima v. Portugal, no. 70465/12, § 39, 12 February 2019). It will therefore continue to deal with the application at the heirs’ request. However, for practical reasons, Mr Freitas Rangel will continue to be referred as “the applicant” in this judgment (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999 ‑ V). ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 39. The applicant complained that his conviction and punishment were in breach of his right to freedom of expression as provided for in Article 10 of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Admissibility 40. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant 41. The applicant asserted that his statements had been of public interest. He argued that he had expressed value judgments and generic statements, but had not mentioned any specific names. Furthermore, a violation of judicial confidentiality under Article 11 § 1 of the CC (see paragraph 34 above) could only be committed by private individuals and not by legal entities. 42. He further submitted that his statements ought to be interpreted in the light of the cultural, social and historic context, and within the scope of the debate in Parliament (see paragraphs 6 and 7 above). Furthermore, he emphasised the extensively political role that both the ASJP and the SMMP held in Portuguese society. 43. Lastly, the applicant alleged that the penalty to which he had been sentenced and the amount he had been ordered to pay in damages (see paragraphs 18, 21 and 27 above) was excessively high, having an undue chilling effect on freedom of expression. (b) The Government 44. The Government argued that the applicant had known that the impugned statements were false. The interference with the applicant’s right to freedom of expression was enshrined in the law and had pursued the legitimate aim of protecting the right to honour and reputation of others. They contended that the applicant had made very offensive statements against the two associations concerned in a location which was of particular relevance to them, considering that they were often called on to express their views before Parliament on legal proposals, specifically on matters connected to the functioning of the justice system. In view of the seriousness of the accusations, the applicant had had the duty to support his allegations with evidence, which he had failed to do. Referring to the Court’s judgment in Morice v. France (no. 29369/10, § 128, ECHR 2015), the Government contended that the applicant’s conviction had been necessary in a democratic society to maintain the authority of the judiciary. 45. As regards the amounts of compensation in respect of non-pecuniary damage which the applicant had been ordered to pay, the Government submitted that they were proportionate to the damage caused. The Court’s assessment (a) Existence of an interference 46. The Court notes at the outset that the parties did not dispute that the applicant’s conviction on two counts of insulting a legal entity following his speech before Parliament had amounted to an “interference”, within the meaning of Article 10 § 2 of the Convention, with the exercise of his right to freedom of expression (see paragraphs 41 and 44 above). The Court sees no reason to hold otherwise. (b) Whether the interference was prescribed by law and pursued a legitimate aim 47. The Court notes that the criminal conviction of the applicant was based on Article 187 §§ 1 and 2 (a) and Article 183 § 2 of the CC (see paragraphs 18, 21, 34 and 37 above) and that his civil liability was based on Article 484 of the Civil Code (see paragraph 33 above). It therefore concludes that the interference at issue was “prescribed by law” within the meaning of Article 10 § 2 of the Convention. 48. The Government argued that the interference in question had pursued the legitimate aim of “the protection of the reputation or rights of others” (see paragraph 44 above). The Court points out in this connection that the issue of whether a legal entity can enjoy the right to reputation (including the scope of such right) is debatable. However, in this case, it is prepared to assume that this aim can be relied on (see, mutatis mutandis, Margulev v. Russia, no. 15449/09, § 45, 8 October 2019, and the references therein). It notes that the Supreme Court found that the allegations made by the applicant had also affected the judicial ethics by which judges and prosecutors were bound (see paragraph 28 above). The Court accepts that the interference also served the legitimate aim of protecting public confidence in the judiciary and thus maintaining the authority of the judiciary within the meaning of Article 10 § 2 of the Convention. However, it remains to be established whether the interference complained of was “necessary in a democratic society”. (c) Whether the interference was necessary in a democratic society (i) General principles 49. The Court refers to the general principles for assessing the necessity of an interference with the exercise of freedom of expression as set out in Morice (cited above, § 124); Bédat v. Switzerland ([GC], no. 56925/08, § 48, 29 March 2016); and Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina ([GC], no. 17224/11, § 75, 27 June 2017). 50. Under Article 10 § 2 of the Convention, there is little scope for restrictions on political speech or on debate on matters of public interest. Accordingly, a high level of protection of freedom of expression, with the authorities thus having a narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest, in particular for remarks on the functioning of the judiciary (see Baka v. Hungary [GC], no. 20261/12, § 159, 23 June 2016, with further references). 51. A distinction must be made between statements of fact and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. However, where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient “factual basis” for the impugned statement: if there is not, that value judgment may prove excessive. In order to distinguish between a factual allegation and a value judgment, it is necessary to take account of the circumstances of the case and the general tone of the remarks, bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact (see Morice, cited above, § 126, with further references, and Miljević v. Croatia, no. 68317/13, § 56, 25 June 2020). 52. Furthermore, the Court has found that the most careful scrutiny on its part is called for when, as in the present case, the measures taken or sanctions imposed by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR 1999 ‑ III). 53. The Court also notes that the protection of the reputation of a legal entity does not have the same strength as the protection of the reputation or rights of individuals (compare Uj v. Hungary, no. 23954/10, § 22, 19 July 2011, and Kharlamov v. Russia, no. 27447/07, § 29, 8 October 2015). The Court has previously emphasised that there is a difference between the reputation of a legal entity and the reputation of an individual as a member of society. Whereas the latter may have repercussions on the individual’s dignity, the former is devoid of that moral dimension. This difference is even more salient when it is a public authority that invokes its right to a reputation (see Margulev, cited above, § 45). (ii) Application of the above principles to the present case 54. Turning to the circumstances of the present case, the Court notes at the outset that the applicant, who is a well-known journalist (see paragraph 5 above) and had been invited by a political party to speak before the Parliamentary Commission on Ethics, Society and Culture (see paragraph 6 above), made the impugned statements while giving his opinion on freedom of expression and the media and how these were influenced by the political and economic classes. During his speech, he alleged that the ASJP and the SMMP, both of which played a role in policy-making decisions concerning judicial matters (see paragraphs 36 and 44 above), had shared confidential information with journalists to advance their political objectives (see paragraph 7 above). The Court finds that those issues were a matter of general interest to the community and that discussing them before Parliament formed part of a political debate, a field where a high level of protection of freedom of expression will normally be accorded, with the authorities thus having a narrow margin of appreciation (see the case-law cited in paragraph 50 above). 55. The Court further observes that the parliamentary session was open to the public and that journalists were present when the applicant spoke (see paragraph 6 above). It therefore finds it unsurprising that the impugned statements were widely disseminated in the media in the days following his speech (see paragraph 10 above). In addition, the applicant was interviewed immediately after the parliamentary session by a journalist from the newspaper Público who was present during his speech before Parliament (see paragraph 8 above). The applicant also gave a follow-up interview in which he reiterated his position, arguing that the ASJP and the SMMP should act with prudence and modesty (see paragraph 11 above). 56. With regard to the ASJP and the SMMP, the Court observes that they are reputable and well-known professional associations which are frequently invited to present their views before Parliament on legal proposals in matters connected to the functioning of justice (see paragraphs 36 and 44 above). 57. The domestic courts, in the criminal proceedings brought by the ASJP and the SMMP against the applicant (see paragraphs 12 and 15 above), assumed that the applicant had made only statements of fact which he knew were false and defamatory towards those associations (see paragraphs 23 and 28 above). The Court, for its part, notes that most of the applicant’s statements consisted of his personal opinions, the truthfulness of which is not susceptible of proof (see the case-law quoted in paragraph 51 above). The only statement of fact at issue is the applicant’s claim concerning the sharing, by the ASJP and the SMMP, of confidential information with journalists. During his trial, the applicant defended that statement, claiming that he had personally witnessed the exchange of a case file between a journalist and a member of the SMMP (see paragraph 17 above). The Court finds that the statements made by the applicant must be understood within the specific context in which they were made. Even if the journalist in issue had denied the applicant’s allegations about the exchange of the case file, thus leaving those allegations unsubstantiated, the applicant’s statement of fact can be considered to have gone beyond this specific allegation and to speak in a more general way about the information sharing by the two organisations. While this may be seen as an exaggerated and thus unfortunate formulation, the applicant’s comments may well be interpreted as an illustration of a broader societal critique regarding the inappropriate intervention of the judiciary as a whole in politics and the media, which was a subject of public interest and which he believed to be true (see paragraphs 7, 8 and 11 above). 58. The Court reiterates that the protection of the reputation of a legal entity does not have the same strength as the protection of the reputation or rights of individuals (see paragraphs 48 and 53 above). Furthermore, in the present case, it is imperative to take into account the context in which the applicant made his remarks, namely before a parliamentary commission dealing with the precise issue of freedom of expression and how the political and economic classes influenced the media and freedom of expression in the country (see paragraphs 5, 6 and 7 above). 59. The Court emphasizes that, according to its case-law, political speech is afforded special protection (see paragraph 50 above). Despite the fact that the applicant was not an elected representative, as an invited expert presenting his views before a parliamentary commission, he should have been afforded an elevated level of protection, as is the case for parliamentary and political speech (see, mutatis mutandis, Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, §§ 242-45, 22 December 2020, and the sources cited therein, and compare Mladina d.d. Ljubljana v. Slovenia, no. 20981/10, § 43, 17 April 2014). 60. Furthermore, the Court notes that, although the Lisbon Court of Appeal referred to the right to freedom of expression and the need for a proportionality assessment in passing (see paragraph 22 above), it based its decision solely on the right to the good name and reputation of the ASJP and the SMMP, without duly taking into account or examining in detail the criteria mentioned in paragraphs 50-53 above. 61. Lastly, turning to the nature and severity of the sanctions imposed (see Cumpănă and Mazăre v. Romania [GC], no. 33348/96, §§ 113-115, 10 June 2003), the Court observes not only that a fine of EUR 6,000 was imposed on the applicant as a criminal sanction, but also that he was ordered to pay EUR 25,000 to each of the associations in respect of non-pecuniary damage (see paragraphs 18, 21 and 27 above). Besides the deterrent effect of the criminal fine imposed, which was not modest (contrast Stoll v. Switzerland [GC], no. 69698/01, § 160, ECHR 2007-V), in the Court’s view the amounts in question were disproportionate to any potential damage caused to the reputation of the associations, which, as noted by both the applicant and the Government, are renowned entities often involved in legal decision-making (see paragraphs 42 and 44 above). The Court also considers that sanctions of this severity may have a chilling effect on the exercise of freedom of expression of persons called upon to participate in discussions of matters of general public interest and concerning institutions (compare Público - Comunicação Social, S.A. and Others v. Portugal, no. 39324/07, § 55, 7 December 2010; Bozhkov v. Bulgaria, no. 3316/04, § 55, 19 April 2011; Pinto Pinheiro Marques v. Portugal, no. 26671/09, § 46, 22 January 2015; Medipress-Sociedade Jornalística, Lda v. Portugal, no. 55442/12, § 45, 30 August 2016; and Pais Pires de Lima, cited above, §§ 66-67). Conclusion 62. The above elements lead the Court to conclude that the domestic courts failed to provide relevant and sufficient reasons to justify the interference with the applicant’s right to freedom of expression. The Court further considers that the domestic courts have exceeded the margin of appreciation afforded to them regarding limitations on debates of public interest and that there is no reasonable relationship of proportionality between, on the one hand, the restriction on the applicant’s right to freedom of expression and, on the other, the legitimate aim pursued. The Court concludes that the interference with the applicant’s right to freedom of expression was not necessary in a democratic society. 63. Accordingly, there has been a violation of Article 10 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 65. The applicant claimed 56,000 euros (EUR) in respect of pecuniary damage, corresponding to the fine of EUR 6,000 inflicted to him and the sum of EUR 50,000 in damages he had been ordered to pay to the ASJP and the SMMP. He did not claim any amount in respect of non-pecuniary damage. 66. The Government noted that the applicant had not paid the full amount of the compensation owed to the ASJP and the SMMP, but had only paid EUR 31,500. 67. The Court considers that an applicant is, in principle, entitled to recover any sums that he or she has paid in fines and costs, by reason of their direct link with the national court judgments which the Court found to be in breach of his or her right to freedom of expression (see Tavares de Almeida Fernandes and Almeida Fernandes v. Portugal, no. 31566/13, § 86, 17 January 2017). In the present case, in view of the documents submitted, the Court notes that the applicant paid the fine of EUR 6,000 which he was ordered to pay, as well as the sums of EUR 25,000 to the ASJP and EUR 500 to the SMMP, totalling EUR 31,500. The Court further observes that, following the death of the applicant, the debt which remained to be paid to the SMMP was inherited by his heirs. Although it appears that they are liable for it (see paragraphs 29-32 above), they have provided no evidence that they paid it. There is therefore no reason to award anything in respect of the remaining debt. In view of the documents submitted, the Court awards the applicant EUR 31,500. 68. As the applicant made no claim in respect of non-pecuniary damage, the Court is not called upon to make any award under that head. Costs and expenses 69. The applicant claimed EUR 14,320 in respect of legal fees and EUR 1,419.82 in respect of other costs and expenses related to the proceedings before the domestic courts. He also claimed EUR 2,783.85 in respect of legal fees and EUR 1,350.56 in respect of other costs and expenses related to the proceedings before the Court. 70. The Government contested the amounts claimed in respect of legal fees, finding them excessive 71. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000 ‑ XI). In the present case, regard being had to the documents in its possession and the above criteria, the Court awards EUR 19,874.23 covering costs under all heads, plus any tax that may be chargeable to the applicant’s heirs. Default interest 72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the domestic courts had failed to give adequate reasoning for their interference with the applicant’s free-speech rights, and that the interference had not been necessary in a democratic society. The Court reiterated, in particular, that the protection of the reputation of a legal entity did not have the same strength as the protection of the reputation or rights of individuals. In the present case, it observed that the reasoning of the appellate court had been based solely on the rights of the professional associations, rather than balancing their rights with those of the applicant. The Court also found that the fine and the damages had been wholly disproportionate and had to have had a chilling effect on political discussion.