CASE OF FERREIRA VICTORINO DE QUEIRÓS v. PORTUGAL

FOURTH SECTION

CASE OF FERREIRA VICTORINO DE QUEIRÓS v. PORTUGAL

(Application no. 23063/18)

JUDGMENT
 

STRASBOURG

11 June 2024

This judgment is final but it may be subject to editorial revision.

In the case of Ferreira Victorino de Queirós v. Portugal,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

 Tim Eicke, President,
 Armen Harutyunyan,
 Ana Maria Guerra Martins, judges,
and Simeon Petrovski, Deputy Section Registrar,

Having regard to:

the application (no. 23063/18) 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 8 May 2018 by a Portuguese national, Mr Óscar Manuel Ferreira Victorino de Queirós (“the applicant”), who was born in 1960, lives in Matosinhos and was represented by Mr M.J. Mendes, a lawyer practising in Porto;

the decision to give notice of the application to the Portuguese Government (“the Government”), represented by their Agent, Mr. R.J. Bragança de Matos, Public Prosecutor;

the parties’ observations;

Having deliberated in private on 21 May 2024,

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

SUBJECT MATTER OF THE CASE

1.  The applicant is a journalist in a daily newspaper Jornal de Notícias (“JN”). The case concerns his criminal conviction for defamation in relation to an article published in JN about a criminal investigation in respect of R.B., a teacher, for charges of (sexual) abuse of children. Invoking Articles 6 and 10 of the Convention, the applicant alleges that his conviction breached his right to freedom of expression, in particular, his right to impart information.

2.  The article in question was published on 25 October 2011 while the criminal investigation in respect of R.B. was ongoing. On the basis of the material in the case-file in the Court of Alijó, which the applicant was authorised to consult, the article stated that R.B. (disclosing his first name and using an initial for his surname) had been indicted for five counts of sexual abuse of children and one count of child abuse for alleged incidents in a primary school. It further indicated that R.B. had contested the charges and evidence brought against him. Lastly, the article described the alleged factual basis for the charges and noted that R.B. worked in another school in the region.

3.  Subsequently, R.B. lodged a criminal complaint with the competent prosecutor accusing the applicant and J.N. of defamation, and claimed compensation.

4.  On 6 September 2016 the Court of Mirandela convicted the applicant of defamation and sentenced him to fifteen months’ imprisonment, suspended for the same period, pursuant to several Articles of the Portuguese Criminal Code and the Press Act. He was also ordered to pay R.B., jointly with Global Notícias, Publicações SA, the owner of the newspaper, 18,800 euros (EUR) for pecuniary damage, as well as EUR 25,000 for non-pecuniary damage.

5.  In its judgment, the Court of Mirandela established that the applicant had not mentioned in the article the decision of the investigating judge to remit the case for trial (pronúncia) in respect of four counts of sexual abuse of children, but had focused, instead, on the indictment (acusação) that had relied on five counts of sexual abuse of children and one count of child abuse. Furthermore, it found that the tone of the article also affected the presumption of innocence of R.B. and allowed him to be easily identified by using his first name and the initial of his surname. The article resulted in the suspension of R.B. from his position as a teacher and subsequent loss of income. It also led to defamatory rumours being spread pending the criminal proceedings, which tarnished his dignity and professional reputation. In view of the foregoing factual inconsistency in the article, the Court of Mirandela found that the public interest of the article did not outweigh the lack of objectivity and rigour shown by the applicant.

6.  With a judgment of 6 November 2017 (served on the applicant on 10 November 2017, an allegation which the Government did not contest) the Appeal Court of Guimarães confirmed the criminal conviction of the applicant and remitted for reconsideration the civil part of the decision. With a final judgment of 11 March 2019 the same court ordered the applicant, jointly with Global Notícias, Publicações SA, to pay R.B. EUR 21,900 in respect of pecuniary and non-pecuniary damage.

7.  Relying on Articles 6 and 10 of the Convention, the applicant complained that the proceedings brought against him had been unfair and unbalanced and that his conviction breached his right to freedom of expression, in particular the right to impart information.

THE COURT’S ASSESSMENT

8.  Although the applicant relied on Articles 6 and 10 of the Convention, the complaints fall to be examined only under Article 10 (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), as the parties were invited to comment after the respondent Government had been given notice of the application.

9.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

10.  The general principles of the Court’s case-law relevant for the present case have been summarised in Bédat v. Switzerland ([GC], no. 56925/08, §§ 48-54, 29 March 2016).

11.  It is common ground between the parties that the domestic courts’ judgments constituted an interference with the applicant’s right to freedom of expression, that such interference was “prescribed by law” and pursued the legitimate aim of protecting R.B.’s reputation, as well as his right to the presumption of innocence. The Court sees no reason to hold otherwise (see Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 76, 27 June 2017, as regards the right to protection of reputation; and Bédat, cited above, § 51 and SIC - Sociedade Independente de Comunicação v. Portugal, no. 29856/13, § 58, 27 July 2021, as regards the right to the presumption of innocence). It thus remains to be ascertained whether the domestic authorities struck a fair balance between the above‑mentioned competing rights of the applicant and R.B. in view of the relevant criteria (see Axel Springer AG v. Germany [GC], no. 39954/08, §§ 90-95, 7 February 2012, and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 93, ECHR 2015 (extracts)).

12.  In the present case, as regards the contribution to a debate of public interest, the Court notes that the impugned article concerned pending criminal proceedings for alleged crimes of (sexual) abuse of children (see paragraph 2 above), and, accordingly, agrees with the domestic courts (see paragraph 5 above) that it conveyed information of public interest (compare Campos Dâmaso v. Portugal, no. 17107/05, § 33, 24 April 2008 and SIC ‑ Sociedade Independente de Comunicação, cited above, § 63), even more in view of the fact that R.B. was teaching at the relevant time.

13.  Furthermore, it was of an informative nature and was based on the indictment that the public prosecutor had brought against R.B., which was in the case-file in the Court of Alijó that was accessible to the public (see, a contrario, Bédat, cited above, § 57, which concerned a disclosure of confidential information) and which the applicant had consulted beforehand (see paragraph 2 above). The domestic courts found that the article had factual inconsistencies, as it was not based on the latest procedural development, namely the slightly reduced number of charges against R.B. admitted for judicial consideration (see paragraph 5 above). While it is true that the article did not refer to those latest procedural developments, it reported about charges as stated in the indictment and was accurate as regards their nature.

14.  Regarding the consequences of the impugned article (see paragraph 5 above), the Court acknowledges that taking into account the content of the article and the particular stigma attached to offences of a sexual nature involving children, allegations of involvement in this type of offence have the capacity to cause prejudice to the personal enjoyment of the right to respect for private life (see SIC - Sociedade Independente de Comunicação, cited above, § 66). However, in the present case, the article concerned criminal proceedings which were, at the time, pending against R.B. The Court can neither establish on its own nor rely on the finding of the domestic courts, that the consequences referred to in paragraph 5 above were due to the publication of the article.

15.  Lastly, regarding the severity of the sanction imposed, the Court considers that the suspended prison sentence of fifteen months and the order to pay R.B., jointly with Global Notícias, Publicações SA, EUR 21,900 as compensation (see paragraphs 4 and 6 above), is capable of discouraging the media from discussing matters of legitimate public concern and has a “chilling effect” on the freedom of expression and of the press (compare SIC ‑ Sociedade Independente de Comunicação, cited above, § 69).

16.  In light of the above considerations, in particular the fact that the domestic courts did not duly balance the interests at stake in accordance with the criteria established in its case-law, the Court finds that the interference with the applicant’s right to freedom of expression, specifically his right to impart information, did not correspond to a pressing social need and thus was not “necessary in a democratic society”.

17.  There has accordingly been a violation of Article 10 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

18.  The applicant claimed EUR 43,800 in respect of pecuniary damage, corresponding to the amounts he was ordered by the Court of Mirandela to R.B. (see paragraph 4 above). He did not claim any non-pecuniary damage arguing that the finding of violation would be sufficient. The applicant further claimed EUR 408 for the costs and expenses in the domestic proceedings. He also claimed the reimbursement of the legal fees for his representation in the proceedings before the Court, without providing any further details or supporting material.

19.  The Government argued that the amount claimed in respect of pecuniary damage corresponded to the one determined by the first-instance court and not the appeal court, which was to be paid jointly with the newspaper (see paragraph 4 above). The applicant also did not submit any evidence that he had paid any of the amounts claimed.

20.  The Court observes that the applicant did not submit any documents showing that he had paid the costs and expenses incurred during the proceedings at the domestic level, as well as compensation to R.B., which concerned both the applicant and the owner of the newspaper, as co‑defendants in the impugned proceedings found to be jointly responsible. Furthermore, the award referred to by the applicant is no longer in force given the subsequent quashing of the trial court’s judgment (see paragraph 6 above). Lastly, in the absence of any supporting material, the Court finds no basis on which to accept that the applicant incurred any fees for his legal representation before the Court (see Merabishvili v. Georgia [GC], no. 72508/13, § 370-72, 28 November 2017). It thus rejects all claims under this head. The applicant did not claim any amount for the non-pecuniary damage, there is therefore no call to award him any amount under this head.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 11 June 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Simeon Petrovski Tim Eicke
 Deputy Registrar President