FOURTH SECTION
DECISION
Application no. 64620/14
António Fernando DA SILVA VINHAS
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 27 November 2018 as a Committee composed of:
Egidijus Kūris, President,
Paulo Pinto de Albuquerque,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 18 September 2014,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr António Fernando da Silva Vinhas, is a Portuguese national who was born in 1964 and lives in Mindelo. He was represented before the Court by Mr N. Trocado da Costa, a lawyer practising in Póvoa de Varzim.
The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is a teacher. At the relevant time, he was working in the Eça de Queirós High School, in Póvoa de Varzim.
4. On 7 June 2010 the applicant was notified that disciplinary proceedings had been lodged against him by the head teacher of the High School, Mr J.S.
5. On 17 June 2010 the applicant received a written reprimand. He was notified of that decision on 21 June 2010.
6. The applicant lodged an appeal against that reprimand.
7. On 13 December 2010 the Deputy Secretary of State for Education (Secretário de Estado Adjunto e da Educação) adopted a decision revoking the sanction imposed on the applicant.
8. The applicant subsequently lodged a request with Mr J.S. to make documentation from the disciplinary proceedings public, and in particular the final decision. That request was refused.
9. On 24 September and 23 December 2010 the applicant sent two different emails to his colleagues at the Eça de Queirós High School, other colleagues in the School of Vila do Conde, the North Regional Directorate for Education, the Parents’ Association, the National Association of School Head Teachers, the Student Association of the Eça de Queirós School, and the General Inspectorate of Education. Those emails contained information about the disciplinary proceedings against him and the final decision adopted by the Deputy Secretary of State for Education (see paragraphs 4, 5 and 7 above).
10. In those emails, the applicant also made statements regarding Mr J.S., such as the following: he lacked “knowledge of basic laws”; he had committed a serious “breach of the obedience and professional loyalty due to the Regional Director”; he had applied “internal regulation comprising illegal rules”; he had accepted the “behaviour of a network of teachers/tutors ... breaching the law ...”; he had ensured an “irregular distribution of teachers within the school”; and the school under his authority had had a “complete and absolute lack of safety rules and control over students entering and leaving the premises”.
11. The applicant also stated that Mr J.S. was “incompetent”, “unqualified”, an “unenlightened little despot” and that he did not have the “clear-sightedness of Catherine II”. He moreover wrote that Mr J.S. considered “the [school] to be an opportunistic catapult for personal progression”, had sanctioned the applicant “with the purpose of silencing the suggestions” that had been made, had used “the power conferred on him to create fear and trembling among the school teachers”, and had committed numerous “little sins and illegalities since 2005”.
12. On an unspecified date Mr J.S. pressed charges against the applicant with the Póvoa de Varzim public prosecutor’s office, claiming that the above emails contained offences against his reputation.
13. On 7 January 2013 the Póvoa de Varzim Criminal Court adopted a decision convicting the applicant of two offences of aggravated defamation and sentencing him to pay a fine of 1,620 euros (EUR) pursuant to Articles 180 and 184 of the Portuguese Criminal Code. The applicant was also ordered to pay EUR 750 in damages to Mr J.S.
14. The court considered that some of the applicant’s expressions used with regard to Mr J.S. in the emails took the form of statements of fact, namely those referring to the alleged “lack of knowledge of basic laws”, “serious breach of the obedience and professional loyalty due to the Regional Director”, application of “internal regulations comprising illegal rules”, acceptance of the “behaviour of a network of teachers/tutors ... breaching the law ...”, “lack of safety rules and control over students entering and leaving the premises”, and “irregular distribution of the teaching staff...” (see paragraph 10 above). Concerning those expressions, the court considered that the applicant had shown no evidence to support his allegations.
15. The Póvoa de Varzim Criminal Court further held that the applicant’s statements had not pursued the legitimate aim of clarifying the details of the proceedings against him because those proceedings had not been publicly known (or known by most of his colleagues) in the first place and also that the applicant could have used less offensive words to express his opinion about Mr J.S. and about Mr J.S.’s professional skills. Moreover, it was an established fact of the case that the applicant had acted voluntarily knowing that his conduct was illegal.
16. Balancing between the applicant’s freedom of expression and Mr J.S.’s right to reputation, the court concluded that the applicant’s statements had exceeded what could have been considered acceptable criticism. It found that they constituted a gratuitous attack on Mr J.S. In this regard, the first-instance court also stated that citizens in general (mainly teachers, students and school staff) would, on reading the applicant’s allegations, have considered that Mr J.S. was not worthy of being the school’s head teacher.
17. On 6 February 2013 the applicant lodged an appeal with the Porto Court of Appeal.
18. On 26 March 2014 the Porto Court of Appeal dismissed the appeal and upheld the first-instance decision.
19. While recognising the relevance of the applicant’s freedom of expression, the Court of Appeal balanced it against Mr J.S.’s right to reputation. In doing so, the court emphasised that the applicant had made use of offensive words which had neither been proportionate nor necessary in the context of the case and agreed with the first-instance court that some of the impugned statements had exceeded what could have been considered acceptable criticism.
COMPLAINT
20. The applicant complained under Article 10 of the Convention that his conviction by the domestic courts for aggravated defamation was in breach of his right to freedom of expression.
THE LAW
21. The applicant complained that he had been convicted for having expressed his opinion and ideas in two emails, in breach of his right to freedom of expression within the meaning of Article 10 of the Convention, which 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.”
22. The Court considers that the applicant’s conviction amounted to an “interference” with his right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.
23. An interference contravenes Article 10 of the Convention unless it is prescribed by law, pursues one or more of the legitimate aims set out in Article 10 § 2 and is necessary in a democratic society in order to achieve those aims.
24. In the instant case the interference referred to above was “prescribed by law”, as it was based on the relevant provisions of the Criminal Code for the protection of personal rights (see paragraph 13 above).
25. The Court furthermore accepts that the interference with the applicant’s freedom of expression pursued one of the legitimate aims referred to in paragraph 2 of Article 10, namely the protection of the reputation and rights of Mr J.S.
26. It remains to be ascertained whether the interference complained of was necessary in a democratic society.
27. The general principles for assessing whether an interference with the exercise of the right to freedom of expression is “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention are well settled in the Court’s case-law and were recently summarised in Bédat v. Switzerland [GC] (no. 56925/08, § 48, ECHR 2016). In view of the circumstances of the case, the Court must also ascertain whether the domestic authorities struck a fair balance between the protection of freedom of expression as enshrined in Article 10 and the right to respect for private life enshrined in Article 8. The criteria for balancing those rights are the following: whether the impugned assertions contributed to a debate of general interest; how well known the person concerned was and the subject of the report; the prior conduct of the person concerned; the method of obtaining the information and its veracity; the content, form and consequences of the publication; and, lastly, the severity of the sanction imposed (see Axel Springer AG v. Germany [GC], no. 39954/08, §§ 78-95, 7 February 2012; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 101-13, ECHR 2012, and Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, §§ 74-77 and 89-120, 27 June 2017).
28. In order to assess the justification of a statement which is in issue, a distinction must be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof (see, among other authorities, Lingens v. Austria, 8 July 1986, § 46, Series A no. 103, and Oberschlick v. Austria (no. 1), 23 May 1991, § 63, Series A no. 204).
29. In the case at hand, the domestic courts scrupulously examined all the facts of the case, the legal issues raised and the competing interests of the applicant and Mr J.S. (see paragraphs 14-16 and 19 above).
30. The Court notes that the applicant’s statements in issue concerned the particular state of affairs arising from the disciplinary proceedings brought against the applicant, as well as his opinion of Mr J.S., which cannot be considered to fall within the context of a debate on a matter of general or public interest, such as the education system.
31. In the present case, the Court shares the view of the Póvoa do Vazim Criminal Court that some of the applicant’s allegations constituted statements of fact. For a school’s head teacher, the accusations that he had applied illegal rules or that the school had completely lacked safety rules and control over students entering and leaving the premises (see paragraph 9 above) were particularly serious, and capable of affecting his professional reputation. Those statements were made via private correspondence to several persons and entities (see paragraph 9 above), some of them with no connection to or even any knowledge of the existence of disciplinary proceedings against the applicant (see paragraph 15 above). Moreover, the applicant did not have a sufficient factual basis on which to base the accusations (see paragraph 14 above). In view of the foregoing, the domestic courts’ findings that the applicant’s statements had exceeded the limits of criticism and resorted to expressions which were offensive (see paragraphs 15, 16 and 19) was proportionate and justified.
32. Lastly, regarding the sanction imposed, the Court has acknowledged, in the context of exercising the right enshrined in Article 10, that any criminal sanction is capable of having a chilling effect on the person on whom it is imposed (see, among other authorities, Stoll v. Switzerland [GC], no. 69698/01, § 160, ECHR 2007‑V). In the present case, however, the amount of the fine imposed (EUR 1,620) was moderate. The same finding applies as regards the compensation the applicant was ordered to pay to Mr J.S. (EUR 750). In these circumstances, and having regard to the content of the impugned remarks, the Court considers that the sanctions were not disproportionate to the legitimate aim pursued.
33. In view of the findings above and having regard to all the materials in its possession, the Court considers that the application does not disclose any appearance of a violation of the Convention.
34. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 December 2018.
Andrea TamiettiEgidijus Kūris
Deputy RegistrarPresident
Full & Egal Universal Law Academy