CASE OF VEIGA CARDOSO v. PORTUGAL

FOURTH SECTION

CASE OF VEIGA CARDOSO v. PORTUGAL

(Application no. 48979/19)

JUDGMENT
 

STRASBOURG

16 January 2024

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

In the case of Veiga Cardoso v. Portugal,

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

 Tim Eicke, President,
 Branko Lubarda,
 Ana Maria Guerra Martins, judges,
and Crina Kaufman, Acting Deputy Section Registrar,

Having regard to:

the application (no. 48979/19) 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 12 September 2019 by a Portuguese national, Mr Victor Manuel Veiga Cardoso (“the applicant”), who was born in 1957 and lives in Barcarena, and who was represented by Ms A. Reis Mota, a lawyer practising in Lisbon;

the decision to give notice of the application to the Portuguese Government (“the Government”), represented by their Agent at the time, Ms M.F. da Graça Carvalho, Deputy Attorney General;

the parties’ observations;

Having deliberated in private on 5 December 2023,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicant’s criminal conviction for aggravated defamation of a public prosecutor.

2.  During a meeting with professionals responsible for the supervision of the applicant’s contact with his daughter, the applicant made the following statements regarding the public prosecutor who was representing his daughter in the proceedings in respect of his parental rights and responsibilities towards her (regulação do poder paternal):

“this is an affront, it’s not a court, it’s nothing, that prosecutor, that B., he drinks, or I don’t know... he doesn’t open his mouth.”

3.  The social workers facilitating the meeting wrote down the comments in a report and sent it to the family court to which the proceedings had been allocated. The applicant was then sued by B. for aggravated defamation.

4.  By a judgment of the Lisbon District Court of 28 November 2018, the applicant was convicted of aggravated defamation and sentenced to a fine in the amount of 1,600 euros (EUR).

5.  It held as follows:

“... [the applicant] intended to raise doubts regarding the public prosecutor’s personal and professional honour and to challenge his personal and professional ethics, harming him as a private individual and as a public prosecutor ...

...those statements ... imply that the public prosecutor doesn’t do his job properly – doesn’t open his mouth – is drunk in court – and likes to drink. Those statements are extremely serious ... [the applicant] cannot legitimise his conduct by arguing that he was unhappy or disappointed by the length or the outcome of the proceedings since there were legal mechanisms at his disposal to challenge possible delays or failures during the proceedings. In addition, those statements cannot be considered as mere venting. In fact, [the applicant] knew that the meeting was part of the judicial proceedings ... and that he was neither acting in a private sphere, nor amongst friends or family with whom he could vent, rather within an institutional domain. In addition, [the applicant] knew that the social workers would report to the court. Those statements show that [the applicant] did not agree with the implementation by the family court of supervised visits with his daughter.

...”.

6.  On 15 May 2019 the Lisbon Court of Appeal upheld that judgment.

7.  Under Article 10 of the Convention, the applicant alleged that his conviction amounted to a breach of his right to freedom of expression.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

8.  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.

9.  The parties agreed that the domestic court’s judgment constituted an interference with the applicant’s right to freedom of expression and the Court sees no reason to hold otherwise. The Court also notes that the interference was prescribed by law – envisaged under Articles 180 § 1, 184 and 132 § 2 (l) of the Portuguese Criminal Code – and was aimed at the protection of the reputation of others, more specifically of the public prosecutor concerned. The issue is, therefore, whether it was “necessary in a democratic society”.

10.  The general principles of the Court’s case-law for assessing the necessity of an interference with the exercise of freedom of expression in the interest of the “protection of the reputation or rights of others” have been summarised in Lešník v. Slovakia (no. 35640/97, §§ 51-56, ECHR 2003-IV); Morice v. France ([GC] no. 29369/10, §§ 124-27, ECHR 2015); Gouveia Gomes Fernandes and Freitas e Costa v. Portugal (no. 1529/08, §§ 42-46, 29 March 2011); and Pais Pires de Lima v. Portugal (no. 70465/12, §§ 57‑63, 12 February 2019).

11.  In the present case, the Court notes that the applicant was convicted for aggravated defamation following statements he had made about a public prosecutor. The Court’s task is therefore to examine whether a fair balance was struck between the competing rights and interests: the applicant’s right to freedom of expression on the one hand and the public prosecutor’s right to have his personal rights protected on the other.

12.  The Court observes that the applicant made the impugned statements during a meeting with social workers as part of the proceedings concerning his parental rights responsibilities in respect of his daughter (see paragraph 2 above). It notes that it is not unreasonable to consider that the applicant expected some discretion and reserve on the part of the professionals. According to the handbook on best practices for the specialised unit working with family courts, such meetings imply an atmosphere of trust, so that parents feel free to express their thoughts openly. Therefore, in the particular circumstances of the case, the Court does not share the domestic court’s view that the applicant knew that, being in an institutional environment, the professionals would report his words to the court (see paragraph 5 above).

13.  Furthermore, it notes that the domestic courts did not categorise the impugned statements as either a statement of fact or as a value judgment (see Ungváry and Irodalom Kft v. Hungary, no. 64520/10, § 46, 3 December 2013). Nevertheless, they considered that the impugned statements showed that the applicant was not satisfied with the implementation by the family court of supervised visits with his daughter (see paragraph 4 above). The Court concludes that the impugned statements consisted of the expression of an opinion, therefore a value judgment.

14.  Moreover, taking into account the fact that the applicant made his statements in reaction to the implementation by the family court of supervised visits with his daughter in the context of family law proceedings, and considering the ironic tone used, the Court shares the applicant’s view that the comments constituted a form of venting.

15.  There is nothing to suggest that the applicant was referring to the public prosecutor’s personal integrity or ethics. On the contrary, it appears that he was referring exclusively to the professional aspect of the public prosecutor’s performance and in particular to his lack of action (see paragraph 2 above). The Court notes that pursuant to Article 72 §§ 1 and 3 of Law no. 147/99 of 1 September 1999, public prosecutors represent children in the promotion and defence of their rights. With this function in mind, it appears that the applicant was criticising the public prosecutor’s inertia in relation to his contact with his daughter which he considered to be his daughter’s right and in her best interests.

16.  Regarding the way in which the applicant expressed himself (see paragraph 2 above), the Court acknowledges that the applicant made use of vulgar language and the accusations at issue can be considered as serious.

17.  The Court reiterates that public prosecutors are civil servants whose task it is to contribute to the proper administration of justice. In that connection they form part of the judicial machinery in the broader sense of that term. There is no doubt that in a democratic society individuals are entitled to comment on and to criticise the administration of justice and the officials involved in it (see Lešník, cited above, §§ 54-55). In other words, it also imposes on those officials a high degree of tolerance, albeit not identical to that expected of politicians (see Mamère v. France, no. 12697/03, § 27, ECHR 2006‑XIII). Similarly, with reference to judges, the Court in Morice (cited above, § 131) stated that, bearing in mind that they formed part of a fundamental institution of the State, they might as such be subject to personal criticism within the permissible limits, and not only in a theoretical and general manner (compare Gouveia Gomes Fernandes and Freitas e Costa, cited above).

18.  In addition, the impugned statements as a whole (see paragraph 2 above) can be seen as a broader comment on the functioning of the judiciary, an area where a degree of hostility and potentially serious remarks can be accepted (see Bédat v. Switzerland [GC], no. 56925/08, § 49, 29 March 2016). In the Court’s view, the domestic courts did not sufficiently explain how the applicant had gone beyond his right to criticism and why his right to express his opinion should have been limited (see, in this respect, Morice, cited above, § 131, and compare Gouveia Gomes Fernandes and Freitas e Costa, cited above, § 52).

19.  Finally, as to the assessment of the nature and severity of the sanctions imposed on the applicant, the Court notes that he was convicted of aggravated defamation and sentenced to a fine of EUR 1,600 (see paragraph 4 above) which appears manifestly disproportionate, especially as the Civil Code provides for a specific remedy in respect of the protection of a person’s honour and reputation (compare Amorim Giestas and Jesus Costa Bordalo v. Portugal, no. 37840/10, § 36, 3 April 2014).

20.  Having regard to the foregoing, and notwithstanding the respondent State’s margin of appreciation in such matters (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 67, ECHR 2012), the Court concludes that the applicant’s criminal conviction cannot be regarded as proportionate in the light of the legitimate aim pursued, and it was thus not necessary in a democratic society.

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

APPLICATION OF ARTICLE 41 OF THE CONVENTION

22.  The applicant claimed 1,600 euros (EUR) in respect of pecuniary damage corresponding to the fine paid following the criminal proceedings at issue. He further claimed EUR 10,000 for non-pecuniary damage sustained. As regards costs and expenses, he claimed EUR 16,484.15 in respect of those incurred before the domestic courts and EUR 6,150 for those incurred before the Court.

23.  The Government considered those amounts exaggerated and invited the Court to apply its case-law regarding costs and expenses.

24.  The Court notes that there is a causal link between the domestic court ruling and the amount claimed in respect of pecuniary damage. It thus awards EUR 1,600 to the applicant, corresponding to the fine paid. Regarding non-pecuniary damage, the Court considers that the finding of a violation constitutes sufficient just satisfaction.

25.  Having regard to the documents in its possession, the Court considers it reasonable to award 17,096.15 EUR covering costs under all heads, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, the following amounts:

(i)  EUR 1,600 (one thousand six hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)  EUR 17,096.15 (seventeen thousand, ninety-six euros and fifteen cents), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 16 January 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Crina Kaufman Tim Eicke
 Acting Deputy Registrar President