Communicated on 9 November 2015
FOURTH SECTION
Application no. 31566/13
José Manuel TAVARES DE ALMEIDA FERNANDES and Maria Gabriela Neves Rebelo Cabrita Simão de ALMEIDA FERNANDES
against Portugal
lodged on 10 May 2013
STATEMENT OF FACTS
The applicants, Mr José Manuel Tavares de Almeida Fernandes (“the first applicant”) and Mrs Maria Gabriela Neves Rebelo Cabrita Simão de Almeida Fernandes (“the second applicant”), are Portuguese nationals who were born in 1957 and live in Colares. They are represented before the Court by Mr F. Teixeira da Mota, a lawyer practising in Lisbon.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The context of the case and the article in question
The first applicant is a well-known journalist in Portugal. At the time in question he was the editor of the daily newspaper Público.
On 29 September 2006 the newspaper published an editorial written by the first applicant entitled “The strategy of the spider”; the editorial addressed the election of the President of the Supreme Court of Justice, which had taken place the day before. The article expressed the first applicant’s opinion on the newly elected President, Judge N.N., and on what his election meant for the Portuguese judicial system. There had been coverage of the election in several articles in the national press in the days before and after that election. The relevant parts of the first applicant’s editorial read as follows:
The strategy of the spider
N.N., the man who will be presiding over the Supreme Court, represents the dark side of our judiciary.
Do you want a symbol, a representative, an exemplar of the wrongs of the Portuguese judicial system? That’s easy: simply mention the name of N.N. and all the wrongs you can think of regarding corporatism, conservatism, atavism, manipulation, games of shadows and influence immediately spring to mind.
The judge – because we are talking about a judge – is a man as intelligent as he is Machiavellian. For years, first in the trade union association of judges [Associação Sindical dos Juízes], then [as a member of] the High Council of the Judiciary [Conselho Superior da Magistratura], and lastly [sitting on] the Supreme Court of Justice, this person – of whom the majority of the Portuguese have never heard – has been weaving a web of connections, of back-scratching, of favours and undertakings (there is an even worse word but I will avoid it) which enabled him yesterday to stick into his somewhat tousled mane the peacock feather he has been lacking: the presidency of the Supreme Court of Justice.
...
... N.N. presented himself to the voters – that is to say, to his peers, and those whom he helped to promote to a position from which one day they would be able to elect him – on the kind of manifesto which makes the hair of the most peaceful citizen stand on end. The man didn’t this out of the goodness of his own heart: at the same time that he was acting as a trade unionist (he asked for an increase in his salary and that less work be given to judges ...) he acted as someone who wanted to overthrow the regime (by wanting to sit on the Council of State [Conselho de Estado]) and added the glittering (due to the amount of accumulated tallow) hat of “resister” of reforms in the judicial sector. If it was advisable for a President of the Supreme Court to pay greater attention to Montesquieu and the principle of the separation of powers than to the playbook of the CGTP [General Confederation of the Portuguese Workers], N.N. did exactly the opposite. He laid out his demands in the grandiose manner of a steelworker in a futuristic “socialist realism” painting, forgetting that he is a judge and the highest representative of the third power, the judiciary, and claimed a place at the table of the “first power”, the executive ...
... The man, I believe without fear of contradiction, is so intelligent and skillful as to be dangerous. ...”
2. The civil proceedings
On 7 December 2007 Judge N.N. brought an action in the Lisbon Civil Court against the applicants for defamation (domestic proceedings no. 5392/07.8TVLSB). He sought non-pecuniary damages amounting to 150,000 euros (EUR).
On 13 November 2009 the Lisbon court found for the plaintiff. The court considered that the article in question had damaged the plaintiff’s reputation. It found that the expressions used by the first applicant had been disproportionate and had clearly exceeded the limits on freedom of expression. It considered that the article diminished public confidence in Judge N.N. and in the High Council of the Judiciary, thus damaging his honour and reputation. The first applicant was ordered to pay EUR 35,000 as compensation for non-pecuniary damage.
On an unknown date, both the applicants and Judge N.N. lodged appeals against the first-instance judgment before the Lisbon Court of Appeal.
On 9 November 2010 the Lisbon Court of Appeal upheld the first‑instance judgment. It held that some of the first applicant’s comments had not exceeded the limits on freedom of expression, but that most of the content of the article constituted an attack on Judge N.N.’s honour, honesty and reputation. The Court of Appeal emphasised that the first applicant had exceeded his right to criticise and inform. It further considered that the first applicant had not been able to prove in the proceedings the veracity of some of the allegations made in the article, even though they had been based on previous articles published in the Portuguese media about Judge N.N. and his election as President of the Supreme Court of Justice.
The Lisbon Court of Appeal ordered the applicants to pay Judge N.N. EUR 60,000 in compensation for non-pecuniary damage. The Lisbon Court of Appeal considered the second applicant a legitimate party to the proceedings and, with regard to her, it grounded its decision on the fact that she did not have any source of income and therefore the income earned by the first applicant as a journalist and director of a newspaper was a direct benefit of the couple, pursuant to the rules established in the Portuguese Civil Code.
On 5 November 2010 the applicants appealed against that judgment before the Supreme Court of Justice.
On 15 December 2011 the Supreme Court of Justice refused to examine the applicants’ appeal. It considered that the judgment of the Lisbon Court of Appeal had not clearly identified all those facts which it considered to be proven; this made it impossible for the Supreme Court to consider the higher appeal. The Supreme Court ordered the case to be remitted to the Lisbon Court of Appeal in order for it to correct its statement of facts; this would enable the Supreme Court of Justice to analyse the points of law that had been raised.
On 13 November 2012 the Lisbon Court of Appeal delivered a new judgment in which it upheld its previous judgment of 9 November 2010.
On 21 November 2012 and on 6 December 2012 Judge N.N. and the applicants lodged an appeal and a cross-appeal (recurso subordinado), respectively, against the judgment of the Lisbon Court of Appeal. On 25 January 2013 the applicants submitted his grounds of appeal.
On 22 February 2013 the appeals before the Supreme Court of Justice were discontinued on the ground that Judge N.N. had not submitted any grounds of appeal (julgado deserto o recurso e caducado o recurso subordinado).
B. Relevant domestic law
The Constitution of the Portuguese Republic provides:
Article 26 § 1
“Everyone shall possess the right to a personal identity, to the development of their personality, to civil capacity, to citizenship, to a good name and reputation, to their own likeness, to speak out, to protect the privacy of their personal and family life, and to legal protection against any form of discrimination.”
The Portuguese Civil Code provides:
Article 70
“The law protects individuals against any unlawful interference or threat of harm to their physical or moral personality.”
Article 484
“Anyone who states or spreads a fact that is capable of harming the reputation of another natural or legal person is liable for damages.”
COMPLAINT
The applicants complain under Article 10 of the Convention that the judgments given in the case were in breach of the first applicant’s right to freedom of expression. In particular, they claim that the amount awarded to the plaintiff as compensation for non-pecuniary damage is disproportionate and has a chilling effect on the exercise of freedom of opinion.
QUESTIONS TO THE PARTIES
1. Does the second applicant have locus standi, as requested by Article 34 of the Convention, to file the present complaint under Article 10, considering that she was a party to the domestic proceedings and she was sentenced to the jointly payment of EUR 60,000 in compensation by the Lisbon Court of Appeal judgment of 13 November 2012?
2. Considering that they did not appeal, on their own motion, against the decision of the Lisbon Court of Appeal of 13 November 2012, have the applicants exhausted domestic remedies, as required by Article 35 § 1 of the Convention?
3. Has there been a violation of the first applicant’s freedom of expression, contrary to Article 10 of the Convention? Was the interference “necessary in a democratic society” within a meaning of Article 10 § 2?
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