WARING AND DO CANTO E CASTRO v. PORTUGAL



                      AS TO THE ADMISSIBILITY OF

                      Application No. 28614/95

                      by Ronald WARING, Juanita WARING

                      and José Bernardo do CANTO E CASTRO

                      against Portugal

     The European Commission of Human Rights sitting in private on

9 April 1996, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 E. KONSTANTINOV

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 P. LORENZEN

                 K. HERNDL

           Mr.   H.C. KRÜGER, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 12 September 1995

by Ronald WARING, Juanita WARING and José Bernardo de CANTO E CASTRO

against Portugal and registered on 21 September 1995 under file No.

28614/95;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The first applicant is an Irish citizen born in 1918.  The second

and third applicants are the first applicant's daughter, a British

citizen born in 1944, and her husband, a Portuguese citizen born in

1942.

     All applicants reside at present in London.

     The facts of the case, as submitted by the applicants, may be

summarised as follows.

     The particular circumstances of the case

     On 20 July 1995, the television station "TVI - Televisão

Independente" broadcast at about 20.00 hours and as a part of its

evening news a special programme called "Camarate : in search of the

truth".  The programme concerned the events which had taken place at

Camarate, a village close to the Lisbon airport, on 4 December 1980.

On that day a former Portuguese Prime Minister, Mr. Francisco Sá

Carneiro, had died, amongst other persons, in a plane crash.

     In the course of this programme, interviews were made with

Mr. J.M. and Mr. S.C. and a letter of Mr. F.S. was shown and read out

by a reporter.  In the statements made, it was alleged that the

applicants had been involved in an assassination plot which had the aim

to blow up with a bomb the airplane used by Mr. Sá Carneiro and Mr.

Adelino Amaro da Costa, then Minister of Defence.  The whole plot had

allegedly been carried out by the third applicant and the material used

for the making of the bomb, namely an explosive device, had allegedly

been brought from London to Portugal by the second applicant and

procured by the first applicant.  It was also said that the latter had

at the time been a senior officer of the British secret service.

     Subsequently, this information was widely diffused by "TVI"

itself and by other media in Portugal and abroad.

     On 4 December 1995, day of the fifteenth anniversary of Mr. Sá

Carneiro's death, another programme was broadcast by "TVI" as a part

of its evening news.  In the course of this programme, some excerpts

of the film "Camarate : in search of the truth" were shown again.  The

TV reporter concluded with a list of possible suspects of the bombing

including the second and third applicants.  References were also made

to criminal proceedings which had been brought by the relatives of the

crash victims.

     Criminal proceedings concerning the plane crash are currently

pending.  The Public Prosecutor's Department (Ministério Público)

decided not to bring charges while the relatives of the crash victims

did bring a private prosecution against several persons, including the

second and third applicants.

     Relevant domestic law

     Under the Press Act (Lei de Imprensa) of 1975 (Decree law no. 85-

C/75 of 28 February 1975), which is applicable to the television by

virtue of Sections 41 and 54 of the Television Act (Law no. 58/90 of

7 September 1990), press publishers and/or editors could be held

criminally responsible for offences committed in the press (abuso de

liberdade de imprensa), even in case of statements made by third

persons (Article 26 of the Decree law no. 85-C/75).  Section 24 of this

Act also provides for civil liability.

     On 25 May 1995, the Parliament adopted Law no. 15/95 which

amended the Press Act of 1975.  Section 26 of this Act now provides

that press publishers and editors can no longer be held criminally

responsible for statements made by persons being interviewed, if no

doubt arises as to the identity of the author of the statements.

     Section 24 of the Press Act concerning civil liability has not

been amended.

     Section 35 of the Television Act, which has not been amended,

provides for the right of reply afforded to whoever considers himself

the victim of an unlawful attack on his honour and good reputation.

     On 14 March 1996, the Parliament adopted Law no. 8/96 which

revoked Law no. 15/95. However, Article 26 of the Press Act as amended

by this law remains in force.

COMPLAINTS

     The applicants complain of the fact that Portuguese law does not

provide them with the possibility to instigate a criminal prosecution

against the persons responsible for the broadcasting of defamatory and

untrue statements contrary to their good reputation and honour.

     The applicants claim that this amounts to a violation of their

right to respect for their private life as ensured by Article 8 of the

Convention.

THE LAW

     The applicants allege a violation of Article 8 (Art. 8) of the

Convention in that the broadcasting of statements contrary to their

good reputation and honour involved interferences with their private

life which could not be remedied under Portuguese law.

     Article 8 (Art. 8) provides as follows :

     "1.   Everyone has the right to respect for his private and

     family life, his home and his correspondence.

     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."

     The applicants contend that the impossibility of bringing

criminal proceedings against the television station "TVI" is in breach

of this provision in that they are thereby prevented from obtaining

protection against defamation and attacks on their honour and good

reputation.  They consider civil liability insufficient and inadequate

to redress their complaints, because civil proceedings would be too

long and expensive and without the deterrent effect generally needed

in this kind of cases.

     The Commission first notes that the events which gave rise to the

present application pertain to the sphere of private life within the

meaning of Article 8 (Art. 8) of the Convention (cf. No. 10871/84, Dec.

10.7.86, D.R. 48 p. 154).

     The Commission next note that there is no question in the present

case of any direct involvement by the respondent Government in the

broadcasting of the relevant statements.  Nevertheless, it recalls that

the obligation imposed by Article 1 (Art. 1) of the Convention to

secure the effective enjoyment of Convention rights may involve

positive obligations on a State and that these obligations may involve

the adoption of measures even in the sphere of relations between

individuals (cf. Eur. Court H.R., X. and Y. v. the Netherlands judgment

of 26 March 1985, Series A no. 91, p. 11, paras. 22 and 23).

     In this respect, the Commission recalls the previous case-law of

the Convention organs according to which the way in which a High

Contracting Party may meet such obligations is largely within its

discretion (cf. Eur. Court H.R., Abdulaziz, Cabales and Balkandali

judgment of 28 May 1985, Series A no. 94, p. 33, para. 67 and further

references contained there).

     Furthermore, it appears to the Commission that in the present

case account also must be taken of the rights guaranteed by Article 10

(Art. 10) of the Convention, which ensures freedom of expression.  A

fair balance between rights that can be contradictory must therefore

be achieved.

     In this connection, the Commission recalls that there are

different ways  of ensuring "respect for private life", and the nature

of the State's obligation will depend on the particular aspect of

private life that is at issue (cf. above-mentioned X. and Y. v. the

Netherlands judgment, p. 12, para. 24).  Recourse to the criminal law

is therefore not necessarily the only answer.

     As regards the protection of the right to enjoy a good

reputation, the Commission recalls its previous case-law according to

which this right must be considered to be a civil right within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention, and

considers that the protection of honour and good reputation can

therefore be generally achieved by way of civil proceedings (cf. No.

808/60, Isop v. Austria, Dec. 8.3.62, Yearbook 5, pp. 108 et seq. ; No.

7116/75, Dec. 4.10.76, D.R. 7 p. 91).

     In the present case, the Commission observes that Portugal has

chosen to amend the Press Act in such a way that press publishers and

editors will no longer be held criminally responsible for statements

made by third persons in the course of an interview.  The Commission

notes that this amendment has been adopted inter alia with the purpose

of giving larger protection to the right to freedom of expression,

guaranteed by Article 10 (Art. 10) of the Convention.

     Concerning the means given to the applicants by Portuguese law

to seek rehabilitation of their honour, the Commission first notes that

they can institute criminal proceedings against the persons having made

the relevant statements.

     On the other hand, the Commission notes that it is possible for

the applicants to bring civil proceedings for compensation against the

television station.  It recalls that Article 24 of the Press Act

concerning civil liability has not been amended.  The applicants' right

to respect for their private life is not therefore wholly unprotected.

They have the possibility of filing with the Portuguese courts an

action for damages for pecuniary and/or non-pecuniary damages and can

ask the court to declare that an unlawful attack on their good

reputation and honour has occurred.  In this respect, the Commission

considers that the applicants have failed to explain for what reasons

this remedy would be unsuitable to protect their rights under Article

8 (Art. 8) of the Convention.  The cost and the length of these

proceedings cannot constitute such reasons.

     What is more, the applicants had the possibility of availing

themselves of the right of reply provided by Article 35 of the

Television Act, which they have not done.

     Summing up, having regard to the aspects of the private sphere

which were at stake in the present case, the Commission finds that the

protection afforded by Portuguese law is sufficient to protect the

applicants' rights under Article 8 (Art. 8) of the Convention.

     It follows that there is no appearance of a violation of this

provision.  The application is therefore manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission            President of the Commission

       (H.C. KRÜGER)                         (S. TRECHSEL)

 

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