FOURTH SECTION
DECISION
Applications nos. 73053/14 and 33075/17
Eduardo Augusto DE CARVALHO BASSO
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 4 February 2021 as a Chamber composed of:
Yonko Grozev, President,
Faris Vehabović,
Iulia Antoanella Motoc,
Gabriele Kucsko-Stadlmayer,
Pere Pastor Vilanova,
Jolien Schukking,
Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to the above applications lodged on 5 November 2014 and 18 April 2017 respectively,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Eduardo Augusto de Carvalho Basso, is a Portuguese national who was born in 1952 and lives in Évora Monte.The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. At the time of the incidents in question (see below), the applicant was a Socialist Party member of the Estremoz municipal council. He was also a teacher at the secondary school in Evora (Ensino secundário oficial de Évora). Lastly, he was the founding partner and president of a local association, L., whose aim is to ensure that the architectural, historical and cultural heritage of Evoramonte Castle are protected and its value recognised.Proceedings brought by the applicant against the mayor of Estremoz (application no. 73053/14)
4. On 3 November 2010 the Estremoz municipal council held a public meeting, in which the applicant confronted the mayor of Estremoz, L.M., about the public subsidies that his association, L., was entitled to receive under the Programme for the Support of the Development of Associations (Programa de Apoio ao Desenvolvimento Associativo). The subsidies had been granted to the association by unanimous decision in a meeting of the municipal council. The mayor of Estremoz noted that certain supporting documents relating to the activities of the association were missing. Furthermore, L.M. stated that he was unable to distinguish whether the applicant was acting in his capacity as a citizen, as the president of the association L., as a representative of the Socialist Party at the municipal council, or as a teacher.
5. Following the meeting, L.M. gave an interview on the same day to a local newspaper, B., stating as follows:
“... Unlike Eduardo Basso, I do not owe 95,000 euros [EUR] as a private citizen to the tax authorities. This is something we need to look into, because when someone owes money to the tax authorities, I don’t know if the money we grant them will go towards the associations or towards the debt owed to the tax authorities.”
6. The interview was published on 11 November 2010 in the newspaper and on its online version.
7. On 18 January 2011 the applicant lodged a criminal complaint with the public prosecutor’s office at the Estremoz District Court against L.M., accusing him of defamation in the form of publicity and slander (publicidade e calúnia), as provided for in Article 180 § 1 and Article 183 § 1 (a) and § 2 of the Criminal Code (see paragraph 36 below).
8. On 10 January 2012 the public prosecutor filed the prosecution’s submissions on charges of defamation, suggesting that L.M. had “committed a crime of defamation, in the form of publicity and slander, by claiming that the applicant would use the money from a potential subsidy to the non-profit association he presides to cover his personal debts”.
9. On 23 January 2012 the applicant sought to intervene in the proceedings as an assistant to the public prosecutor (assistente) and filed private prosecution submissions (acusação particular) with the Évora Criminal Investigation Court (Tribunal de Instrução Criminal), requesting the conviction of L.M. for defamation and claiming compensation of at least EUR 12,550.
10. L.M. challenged the prosecution submissions by requesting that a judicial investigation be opened. On 1 June 2012 the investigating judge (juiz de instrução) dismissed the case (despacho de não-pronúncia).
11. On 18 June 2012 the applicant appealed to the Évora Court of Appeal.
12. On 4 April 2013 the Évora Court of Appeal set aside the decision of the investigating judge and remitted the case to the Évora Criminal Investigation Court.
13. On 22 April 2013 the investigating judge confirmed the charges of defamation against L.M. and committed the case for trial (despacho de pronúncia) at the Estremoz District Court.
14. On 10 January 2014 the Estremoz District Court convicted L.M. of defamation, in the form of publicity (publicidade), to a 160-day fine, totalling EUR 1,280. L.M. was also ordered to pay EUR 3,500 in damages to the applicant.
15. The Estremoz District Court noted it as established that it had been the intention of L.M. to humiliate the applicant:
“5. Through these comments, the mayor of Estremoz implied that the association L. would be used to the benefit of the [applicant] to repay the debt to the tax authorities.
...
6. Through this statement the defendant attempted to diminish, humiliate and ridicule the image of the [applicant].
7. He was successful in this aim, damaging the [applicant’s] honour, good name, moral integrity and reputation.”
16. The Estremoz District Court also found the following facts as established:
“9. The [applicant] is the founding partner of L., and has served in the role of president of the association since 2004.
10. The [applicant] is the director of the newspaper E. and its online edition.
11. The [applicant] was the founder and first president of the association R.E.S.P., which has members in Portugal, Spain, the Netherlands, Germany, the Czech Republic, Bulgaria, Hungary, Turkey and Croatia holding meetings across Europe.
12. The [applicant] was the founder and director of the first private radio station to operate in Évora – M. (currently known as Rádio T.) –, and was the founder and managing partner of the S. company, based in Évora, which, between 1992 and 2002, provided news coverage of the entire Alentejo region for the SIC and TVI television channels and produced more than 3,500 news items.
13. In the period between November 2005 and February 2011, the [applicant] was a member of the Estremoz municipal council ...
14. The [applicant] is a well-known and publicly recognised figure.
15. His friends consider him as someone who is highly educated and cultured, with a fine reputation and social respectability.
16. L. is an association that pursues the goal of civic, cultural and social intervention to ensure that the architectural, historic and cultural heritage of Évoramonte Castle is protected and fostered, and its value recognised.
17. By the time the defendant was interviewed by the newspaper B., a dispute had arisen between the [applicant] and the defendant concerning the granting of subsidies by the Estremoz municipal council to the association L.
18. The [applicant] and the defendant had other disagreements of a political nature.
19. The [applicant] published, in a blog in the newspaper E., several articles in which he expressed his opinion on how the ‘defendant’ was performing the role of mayor of the municipality of Estremoz.
20. By the time of the [above-mentioned] interview, the [applicant] was in debt to the State Treasury.”
17. On 12 February 2014 L.M. appealed against that decision to the Évora Court of Appeal.
18. On 18 March 2014 the applicant responded to the appeal.
19. On 1 July 2014 a bench of two judges of the Évora Court of Appeal, composed of J.S. and F.P., quashed the judgment of the Estremoz District Court on the grounds that it had failed to strike a fair balance between the applicant’s right to protection of his honour and L.M.’s right to freedom of expression under Article 10 of the Convention. The relevant parts of the judgment read as follows:
“This subject is of general interest in that it would be of interest to any citizens, namely taxpayers, even beyond the municipality of Estremoz, [since] the beneficiaries of public subsidies and the way in which the latter are paid out and spent are of general national interest.
In sum, this was a political dispute and a topic of general interest. It follows that in the balancing of values the scales will fall, clearly and heavily, towards freedom of expression, since it is not feasible to consider any balancing of interests that will reduce protection for freedom of expression and grant excessive value to the honour of someone who is involved in a political dispute and competing for subsidies of a public nature.
And, in this field, there is the positive obligation – burdening the Portuguese Courts – stemming directly from the text and spirit of the Convention (and its jurisprudence), to ensure that the principle of freedom of expression is fully upheld, which is particularly relevant in the context of a political dispute and interests of a general nature.”
20. The Court of Appeal went on to clarify that protection of the right to honour had a long history of being misused in Portugal and had often prevailed over other rights, particularly the right to freedom of expression. As the Court of Appeal stated:
“... The facts ... clearly indicate that we find ourselves faced with a political dispute (plena luta política). And the newspaper articles written by the [applicant] ... confirm the existence of such a dispute.
But that is not all! It must be added that the granting of subsidies to an association of which the [applicant] is director is clearly a matter of general interest.
...
In addition, our history of protecting honour has been anything but positive, because as recently as in the second half of the previous century it was tolerated, at least socially, to ‘defend one’s honour’ through blood crimes. Today this defence of honour using criminal proceedings, ... which is even enshrined in several norms of the Criminal Code, is relied upon – through defamatory criminal norms – as a way of escaping criticism, and silencing adversaries, and to achieve personal or institutional goals without the inconvenience of criticism.”
21. The Court of Appeal explained the extent to which L.M.’s claim had been based on genuine information.
“B.4.1 And here, in the case before us, the [applicant], in one of his ‘persona’, that of manager of an association benefiting from a public subsidy, believes himself to have an absolute right to receive the subsidy, and considers that he must not be audited under the criteria defined by the relevant entity, and complains to administrative entities about this. [The administrative entities] take the question seriously (!) and even investigate what the public prosecutor of the county [comarca] is doing; no one remembers that the municipality granting the subsidy, and its president, have a duty to safeguard public funds, a duty to audit their declared and accepted use, to consider who will legitimately receive the funds in the name of the public entity, and to ensure that they are in fact received. As a minimum. Given that established fact (20) states that the [applicant] was liable for a debt to the State Treasury, this duty on the defendant becomes clearer and more pertinent, and increases his obligation to safeguard the adequate use of the subsidy funds. Is the simple fact of knowing that there exists a debt to the tax authorities, which is already at the enforcement stage, not sufficient to raise doubts and questions, [ensure] safeguards, or even to refuse a subsidy? And safeguarding the purpose behind the subsidy is not a crime. It is fulfilling a duty. Only in a country where obtaining subsidies is an end in itself could one think otherwise.
...
With regard to the amount of debt owed, although it does not correspond to what was effectively quoted [by L.M.], any difference is irrelevant, because the fact that the debt exists is in itself of considerable importance, and sufficient for ‘exceptio veritatis’.”
22. The Court of Appeal clarified some of the established facts mentioned in the previous judgment. More specifically, it rectified established fact no. 20 (see paragraph 16 above), from reading simply
“20. By the time of the [above-mentioned] interview, the [applicant] was in debt to the State Treasury.”
to:
“20. By the time of the [above-mentioned] interview, the [applicant] was personally liable [contribuinte principal] to the State Treasury in the amount of EUR 388.75 and, as the managing partner of a company, liable [revertido] for EUR 44,712.56.”
23. The Court of Appeal’s decision of 1 July 2014 was not amenable to further appeal.Proceedings brought by the applicant against the two judges of the Évora Court of Appeal (application no. 33075/17)
24. On 18 November 2014 the applicant lodged a criminal complaint with the Department for Investigation and Criminal Action of Évora against J.S. and F.P., the two judges who had drafted the decision of 1 July 2014, claiming that paragraph B.4.1 of the judgment (see paragraph 21 above) contained wording that amounted to a personal insult (ofensa) to him as leader of a non-profit organisation.
25. The complaint was referred to the public prosecutor at the Supreme Court, pursuant to Article 11 § 4 (a) of the Code of Criminal Procedure (see paragraph 37 below).
26. On 6 July 2015 the applicant filed private prosecution submissions (acusação particular) with the Supreme Court against J.S. and F.P. for defamation in the form of publicity and slander, as provided for in Article 180 § 1 and Article 183 § 1 (a) and § 2 of the Criminal Code (see paragraph 36 below).
27. On an unspecified date the applicant sought to intervene as an assistente in the proceedings.
28. On an unspecified date J.S. and F.P. requested that an adversarial investigation be opened.
(a) The Supreme Court’s decision of 8 June 2016
29. On 8 June 2016 a judge of the third section (criminal section) of the Supreme Court dismissed the case (despacho de não-pronúncia), on the grounds that J.S. and F.P. had not proffered “slanderous offences or made a judgment on the character of the [applicant] with the sole purpose of diminishing or humiliating the [applicant]”.
30. The investigating judge of the Supreme Court considered that the impugned paragraph from the Évora Court of Appeal’s judgment of 1 July 2014 was a statement of fact, and held as follows:
“The statements at stake were made in the Évora Court of Appeal, which reassesses the judgment at first instance through a reasoning of facts [fundamentação de facto]; it is the part of the judgment in which the judges, in reassessing the established and unascertained facts and the reasoning for such findings, set out the grounds which meant that the mayor was making a statement of fact rather than any other type of statement.”
31. The judge also explained that that paragraph ought not to be read out of context; on the contrary, it had to be read in a broad and varied context. The judgment read as follows:
“First of all, it is appropriate to pay attention to the facts, both established and unascertained, settled in the judgment being appealed against [sentença recorrida], as well as the underlying reasoning.
The whole question, in its entirety, involves facts that are interrelated, such as the political strife between the [applicant] and the defendant, the issue of whether or not to grant subsidies, the procedures for fiscal enforcement, the third-party debt orders ...”
32. The Supreme Court argued that it was not possible to conclude that the impugned judgment was likely to spread suspicion that the applicant would repay his debt by resorting to the public funds granted to the association L. Instead, it acknowledged that the municipality had a duty to ensure that public funds were appropriately deployed.
33. On 29 June 2016 the applicant appealed against the judgment.
(b) The Supreme Court’s judgment of 3 November 2016
34. On 3 November 2016 a bench of two judges of the fifth section (criminal section) of the Supreme Court dismissed the appeal, confirming that there was insufficient evidence of any defamation.
35. They emphasised that the statements in issue were necessary in the specific context of the case. In particular they noted that J.S. and F.P. were simply substantiating their decision to acquit L.M. Specifically, they were contextualising L.M.’s comments. On this point, the court concluded as follows:
“It is in the context of a judicial decision in which the judges were required to substantiate the decision taken, both in terms of facts and law, that they presented their arguments. In the light of the legal and constitutional obligation to justify the decision and in the light of the need to describe and analyse the conduct of the [original] defendant, the defendants [in the present case] simply, in an ultra-realistic manner, interpreted the terms in which the [original] defendant might have acted and the reasons behind his actions.”Relevant domestic law and other relevant materialRelevant domestic law
36. The relevant provisions of the Criminal Code read as follows:
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
Publicity and slander
“1. If in the case of 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 the imputation was false, the minimum and maximum penalties for defamation or injury 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 a fine of not less than 120 days.”
37. The relevant provisions of the Code of Criminal Procedure read as follows:
Article 11
Jurisdiction of the Supreme Court
“...
4. It is incumbent upon the criminal sections of the Supreme Court of Justice, in criminal matters:
(a) to judge cases of crimes committed by judges of the Supreme Court of Justice and of the courts of appeal and magistrates of the public prosecutor’s office who exercise functions before these courts, or similar;
...
7. Each judge from the criminal section of the Supreme Court, in criminal matters, has jurisdiction to investigate, conduct the proceedings [dirigir a instrução], preside the hearings [presidir ao debate instrutório] and decide to either continue or discontinue the proceedings [proferir despacho de pronúncia ou não pronúncia nos processos] ...”
Article 286
“1. The investigation stage aims to ensure judicial scrutiny of a decision to submit charges [acusar] or to discontinue an investigation [arquivar], with the aim of deciding whether or not to refer the case for trial.
2. The investigation stage is optional. ...”
Article 308
Order of committal [pronúncia] or non-committal [não-pronúncia]
“1. If, by the conclusion of the investigation, sufficient evidence has been collected to verify the assumptions on which the judge may apply a penalty or impose a security measure on the accused, the judge may, by order, commit the accused for trial [pronúncia] on the respective facts; otherwise, it issues a dismissal of the case [não-pronúncia] ...”Consultative Council of European Judges
38. In its Opinion no. (3) on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality, adopted on 19 November 2002, the Consultative Council of European Judges (CCJE) made the following observations, in so far as relevant:
“...
53. Nevertheless, while current practice does not therefore entirely exclude criminal liability on the part of judges for unintentional failings in the exercise of their functions, the CCJE does not regard the introduction of such liability as either generally acceptable or to be encouraged. A judge should not have to operate under the threat of a financial penalty, still less imprisonment, the presence of which may, however sub-consciously, affect his judgment.
54. The vexatious pursuit of criminal proceedings against a judge whom a litigant dislikes has become common in some European states. The CCJE considers that in countries where a criminal investigation or proceedings can be started at the instigation of a private individual, there should be a mechanism for preventing or stopping such investigation or proceedings against a judge relating to the purported performance of his or her office where there is no proper case for suggesting that any criminal liability exists on the part of the judge.
...”
COMPLAINTS
39. The applicant complained under Article 10 of the Convention of the failure of the domestic courts to protect his right to reputation in the defamation proceedings brought by him against the mayor of Estremoz, L.M. (application no. 73053/14) and against judges J.S. and F.C. (application no. 33075/17).
THE LAWJoinder of the applications
40. Having regard to the similar subject matter and factual background of the applications, the Court finds it appropriate to examine them, in accordance with Rule 42 § 1 of the Rules of Court, jointly in a single decision.Complaint under Article 8 of the Convention
41. Relying on Article 10 of the Convention, the applicant complained that the authorities had failed to protect his right to reputation and honour, which had been infringed by the statements from L.M., the mayor of Estremoz, to the newspaper B. (see paragraph 5 above) and a paragraph from the Évora Court of Appeal’s judgment of 1 July 2014 (see paragraph 21 above).
42. The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that the applicant’s complaints should be analysed from the standpoint of Article 8 of the Convention alone in so far as the right to the protection of reputation is a right which is protected by Article 8 as part of the right to respect for private life (see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004‑VI; and Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007). The relevant parts of Article 8 read as follows:
“1. Everyone has the right to respect for his private ... life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”General principles
43. The Court reiterates that, in order for Article 8 to come into play, an attack on a person’s reputation must attain a certain level of seriousness and be carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG, cited above, § 83, and Bédat v. Switzerland [GC], no.56925/08, § 72, 29 March 2016).
44. The Court notes that, in situations such as that in application no. 73053/14, what is in issue is not an act undertaken by the State but the alleged inadequacy of the protection afforded by the domestic courts to the applicant’s private life. It reiterates that the positive obligation inherent in Article 8 of the Convention may oblige the State to adopt measures designed to secure respect for private life, even in the sphere of the relations of individuals between themselves. The applicable principles are, nonetheless, similar, and regard must be had to the fair balance that has to be struck between the relevant competing interests (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 98 and 99, ECHR 2012, and Sousa Goucha v. Portugal, no. 70434/12, §§ 40 and 55, 22 March 2016).
45. According to the Court’s case-law, the choice of the means calculated to secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation Odièvre v. France [GC], no. 42326/98, § 46, ECHR 2003‑III, and Petrie v. Italy, no. 25322/12, § 41, 18 May 2017). However, this margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court. In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see Von Hannover, cited above, § 105, with further references).
46. Furthermore, the Court considers that the present case requires an examination of the question of whether a fair balance has been struck between the applicant’s right to the protection of his private life under Article 8 of the Convention and the other parties’ right to freedom of expression, protected by Article 10. Having considered, on numerous previous occasions, similar disputes requiring an examination of the issue of a fair balance, the Court refers to the general principles that have been established in its case-law relating to each of the rights in question (see Axel Springer AG, cited above, §§ 78-88; Von Hannover, cited above, §§ 95‑107; and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 83‑93, ECHR 2015).
47. In cases which require the right to respect for private life to be balanced against the right to freedom of expression, the Court considers that the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention, or under Article 10. Indeed, as a matter of principle these rights deserve equal respect. Accordingly, the margin of appreciation should in theory be the same in both cases (Couderc and Hachette Filipacchi Associés, cited above, § 91). Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, § 88, and Von Hannover, § 107, both cited above). In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing Convention rights (see Delfi AS v. Estonia [GC], no. 64569/09, § 139, ECHR 2015, and Petrie, cited above, § 45).Application of those principles to the present case
(a) As concerns the statements by L.M. (application no. 73053/14)
48. The present case concerns comments made to a local newspaper, B. (see paragraph 5 above), in which L.M., the mayor of Estremoz, raised a suspicion as to the allocation of subsidies to the applicant’s association, L. (see paragraph 3 above). These allegations, though being worded in general terms, appeared to be targeting the applicant and were serious enough for Article 8 of the Convention to come into play.
49. The Court observes that the applicant is an elected official of the Estremoz municipal council (se paragraph 3 above), an active member of his community and has acquired a certain public standing within the municipality of Estremoz. In its judgment, the Estremoz District Court gave a detailed account of the applicant’s professional activities. Furthermore, it noted the existence of a political dispute between the applicant and L.M., concerning inter alia the granting of subsidies to the applicant’s association, and described how the applicant had voiced his opinion on L.M.’s policies on the blog of the newspaper E., owned by him (see paragraph 16 above).
50. In the light of the domestic courts’ findings, the Court reiterates that the limits to acceptable criticism must accordingly be wider in the present case than in the case of an individual who is not well known (see, inter alia and mutatis mutandis, Erla Hlynsdόttir v. Iceland, no. 43380/10, § 65, 10 July 2012, with further references). However, while reporting on true facts about politicians or other public persons’ private life may be admissible in certain circumstances, even persons known to the public have legitimate expectations of protection of, and respect for, their private life (see Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, § 53, 4 June 2009).
51. The Court notes that the Évora Court of Appeal’s judgment of 1 July 2014 described the disputed matter at length, holding that the distribution of public funds was a question of general interest (see paragraph 19 above). The Court also observes that the impugned statements were part of a public debate.
52. As to the content of the impugned statements, although the amount of debt alluded to by L.M. was significantly exaggerated, it was established by the domestic courts that the applicant did indeed owe money to the tax authorities (see paragraphs 16 in fine and 22 above). Therefore, albeit expressed provocatively, the Court considers that L.M.’s comments amounted to a factual assertion. Seen in its context, namely the political dispute between L.M. and the applicant, the Évora Court of Appeal considered that the statement meant in essence that the municipality had a right and a duty to ensure that public funds were properly distributed and used.
53. Lastly, the Court observes that the domestic courts conducted a careful proportionality assessment with regard to the applicant’s right to honour and reputation and L.M.’s right to freedom of expression. The Évora Court of Appeal argued, in particular, that the public nature of the dispute, the longstanding political dispute between the applicant and L.M., and the veracity of the impugned statement concerning the existence of the debt favoured the protection of the right to freedom of expression over the applicant’s right to reputation and honour (see paragraph 19 above).
54. In view of the foregoing, the Court considers that, in assessing the circumstances submitted for their appreciation, the competent domestic authorities gave due consideration to the principles and criteria laid down by the Court’s case-law for balancing the right to respect for private life and the right to freedom of expression. It finds in particular that in striking the fair balance, required in the context of the State’s positive obligations, between L.M.’s freedom of expression under Article 10 and the applicant’s right to honour and private life under Article 8, the Évora Court of Appeal did not overstep the margin of appreciation afforded to it (see, mutatis mutandis, Sousa Goucha, § 55, and Petrie, § 54, both cited above).
55. In conclusion, the Court discerns no strong reasons which would require it to substitute its view for that of the Court of Appeal and to set aside the balancing exercise carried out by it (see the case-law quoted in paragraph 47 above).
56. It follows that application no. 73053/14 must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
(b) As to paragraph B.4.1 of the Évora Court of Appeal’s judgment of 1 July 2014 (Application no. 33075/17)
57. The applicant also complains about the arguments made by the judges C.S. and F.C. of the Évora Court of Appeal (see paragraph 21 above), ruling on the L.M.’s appeal against the decision of the Estremoz District Court to convict him of defamation.
58. The question arises whether these statements contained an attack on the applicant’s reputation reaching such a level of seriousness that Article 8 would be applicable (compare, Sanchez Cardenas v. Norway, no. 12148/03, §§ 33-34, 4 October 2007). Firstly, the Court notes that the impugned statements in the present case do not concern the particular judicial statements to which Article 8 has been previously applied (see, for example, Sanchez Cardenas, cited above, §§ 33-34, concerning a suggestion that the High Court suspected the applicant of sexually abusing a child; Vicent Del Campo v. Spain, no. 25527/13, §§ 47-48, 6 November 2018, concerning comments made in relation to a third party mentioned in the proceedings; Carvalho Pinto de Sousa Morais v. Portugal, no. 17484/15, §§ 53-54, 25 July 2017 concerning clearly discriminatory remarks and C.C. v. Spain, no. 1425/06, § 30, 6 October 2009, Z v. Finland, 25 February 1997, § 113, Reports of Judgments and Decisions 1997‑I § 113; and L.L. v. France, no. 7508/02, § §§ 45-46, ECHR 2006‑XI, concerning the disclosure of sensitive and personal medical or other private information). Therefore, the Court concludes that the impugned statements regarding the applicant’s reputation do not attain that certain level of seriousness in order for Article 8 to come into play.
59. Secondly, the Court observes that the impugned statements made by J.S. and F.C. were part of the factual contextualisation of the judgment’s motivation and fell within a wider analysis of the various aspects forming the background to the case, such as the existence of the debt the applicant owed to the tax authorities and the political dispute between the applicant and L.M. (see paragraph 31 above). In particular, the statement referred to L.M.’s comments on the potential distribution of public funds to the applicant’s association L., clarifying that it was reasonable for the mayor to audit and comment on the adequate deployment and usage of these funds (see paragraph 21 above).
60. Lastly, the Court notes that this complaint raises the important issue concerning the protection of judicial independence when judges are fulfilling their obligation to provide reasons, from claims by losing parties who disagree with the judgment delivered. The Court emphasizes that liability proceedings against judges should only take place in exceptional circumstances and that criminal proceedings, in particular, must be avoided when there is no proper evidence suggesting that any criminal liability exists on the part of the judge, such as in the instant case (see, on this regard, paragraphs 53-54 of Opinion no. 3 (2002) of the CCJE in paragraph 38 above).
61. In view of the foregoing, the Court concludes that Article 8 is not applicable as far as application no. 33075/17 is concerned. Accordingly, the application is to be rejected as inadmissible ratione materiae within the meaning of Article 35 § 3 (a) and § 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 25 February 2021.
Ilse FreiwirthYonko Grozev
Deputy RegistrarPresident
Full & Egal Universal Law Academy