Published on 8 April 2024
FOURTH SECTION
Application no. 19344/22
Elsa Maria TERRINCA MARQUES RAMOS
against Portugal
lodged on 12 April 2022
communicated on 18 March 2024
SUBJECT MATTER OF THE CASE
The application concerns the applicant’s criminal conviction on two counts of defamation following a criminal complaint lodged against her by A. and F.
After her separation from M., A. started proceedings with the Lisbon Family Court in order to establish parental responsibilities for their son, J., who was four years old at the time.
On 3 February 2016 the applicant, a friend of M.’s, sent an email to the Lisbon Family Court in which she raised concerns about J. Among other things, she alleged that his mother, A., demonstrated a lack of ability in basic parental care and that she was an adulterous mother (mãe adúltera). She also submitted that F., J.’s grandfather, had a gun in his possession at home.
On 10 December 2020 the Criminal Court of Lisbon convicted the applicant on two counts of defamation against A. and F. and sentenced her to a fine of 1,200 euros (EUR) and to pay EUR 3,000 in damages to A. and EUR 1,500 to F. It found that the applicant’s allegations were untrue and based solely on what M. had told her.
On 11 January 2022 the Lisbon Court of Appeal upheld this judgment.
Relying on Articles 9 and 10 of the Convention, the applicant complains that her conviction amounted to a breach of her right to freedom of thought, conscience, religion and of her right to freedom of expression.
QUESTIONS TO THE PARTIES
Has there been a violation of the applicant’s right to freedom of expression contrary to Article 10 of the Convention? In particular, was the interference with the applicant’s right to freedom of expression “necessary in a democratic society”? More specifically:
1. Did the applicant act in good faith and did she believe that the information given was true (see, mutatis mutandis, Halet v. Luxembourg [GC], no. 21884/18, §§ 127-129, 14 February 2023; Guja v. Moldova [GC], no. 14277/04, §§ 92-94, ECHR 2008; Juppala v. Finland, no. 18620/03, § 43, 2 December 2008; Bargão and Domingos Correia v. Portugal, nos. 53579/09 and 53582/09, §§ 35-36, 15 November 2012; and M. v. Croatia, no. 10161/13, § 140, ECHR 2015 (extracts))?
2. Did the national authorities strike a fair balance between the need to safeguard children from abuse by their family and the need to protect parents from unnecessary interference with their right to respect for their private and family life or the risk of unjustified prosecution (see M.P. v. Finland, no. 36487/12, §§ 52-53, 15 December 2016, and Juppala, cited above, §§ 41‑42)?
3. Did the domestic courts take into consideration the context in which the applicant’s declarations had been made (see, mutatis mutandis, M.P. v. Finland, cited above, §§ 51, 56 and 59)?
4. Was the severity of the sanction imposed on the applicant, and the chilling effect it might have on the freedom of expression and on the protection of children from abuse, sufficiently taken into consideration by the domestic authorities (see M.P. v. Finland, cited above, § 56, Juppala, cited above, § 43)?