The European Court of Human Rights in a judgment on 19 January found Portugal in breach of Article 6 § 1 (right to a fair trial) and Article 10 (freedom of expression) on account of the unjustified interference with the freedom of expression of a journalist convicted of aggravated defamation.
The principal facts in he case of Laranjeira Marques da Silva v. Portugal (application no. 16983/06): The applicant, António José Laranjeira Marques da Silva, is a Portuguese national who was born in 1963 and lives in Leiria.
At the relevant time the applicant was the editor of the regional weekly newspaper Notícias de Leiria, in which he wrote an article in February 2000 about criminal proceedings brought against J., a doctor and politician well known in the region, for the sexual assault of a patient. He wrote another article on the subject a few days later clarifying some of the facts, as well as an editor’s note calling for further testimonies relating to other possible incidents of a similar nature involving J.
In the course of the criminal proceedings against him Mr Laranjeira Marques da Silva was charged with a breach of the segredo de justiça (a concept similar to confidentiality of the judicial investigation) and with defamation of J.
The Leiria District Court held in a judgment of 21 December 2004 that the applicant had overstepped his responsibilities as a journalist and had aroused widespread suspicion towards J. by insinuating, without justification, that the latter had committed similar acts involving other victims. Mr Laranjeira Marques da Silva was found guilty of a breach of the segredo de justiça and of two counts of aggravated defamation, as the complainant was an elected representative. He was sentenced to a daily fine payable for 500 days and ordered to pay 5,000 euros (EUR) in damages to J.
On appeal, the applicant challenged his conviction concerning the segredo de justiça on the ground that he had obtained access to the information in question lawfully. On the defamation issue he argued that he had simply exercised his right to freedom of expression and that his articles had been based on fact and, moreover, related to a subject of general interest. Lastly, he contended that the aggravating circumstance provided for by the Criminal Code should not apply in his case as J.’s actions had not been carried out in the exercise of his political office. The Court of Appeal dismissed his appeal in November 2005.
Mr Laranjeira Marques da Silva lodged a constitutional appeal, without success. He then lodged an extraordinary appeal seeking harmonisation of the case-law with the Supreme Court, which declared it inadmissible.
Complaints, procedure and composition of the Court
Relying on Article 6 § 1, the applicant complained of the failure of the Court of Appeal to examine his ground of appeal to the effect that the aggravating circumstance provided for by the Criminal Code did not apply. Under Article 10 he complained that his conviction for defamation had infringed his right to freedom of expression.
The application was lodged with the European Court of Human Rights on 21 April 2006.
Judgment was given by a Chamber of seven judges, composed as follows:
Françoise Tulkens (Belgium), President,
Ireneu Cabral Barreto (Portugal),
Vladimiro Zagrebelsky (Italy),
Danute Jociene (Lithuania),
András Sajó (Hungary),
Nona Tsotsoria (Georgia),
Isil Karakas (Turkey), judges,
and also Sally Dollé, Section Registrar.
Decision of the Court
Article 6 § 1
Although the courts were obliged to give reasons for their decisions, Article 6 did not in principle require appeal courts to reply in detail to each argument. However, a question as to whether or not an aggravating circumstance applied could not as a rule be rejected tacitly, and the Court considered that a specific and explicit reply from the Court of Appeal had been called for in the present case.
As no such reply had been given the Court held unanimously that there had been a violation of Article 6 § 1.
Article 10
The applicant’s conviction for breach of the segredo de justiça
The Court did not did not share the applicant’s view that the authorities’ interference with his freedom of expression had not been “prescribed by law” as it had not been foreseeable. In the light of the Portuguese courts’ case-law on the subject, the applicant could have foreseen the legal consequences of publishing the articles.
Furthermore, it was not disputed that the interference in question had pursued the legitimate aim of protecting the proper administration of justice and the reputation of others.
The Court pointed out that neither the concern to safeguard the investigation nor the concern to protect the reputation of others could prevail over the public’s interest in being informed of certain criminal proceedings conducted against politicians. It stressed that in the applicant’s case there was no evidence of any damaging effects on the investigation – which had been concluded by the time the first article was published – or of a breach of the presumption of innocence. Lastly, there was nothing to indicate that the applicant’s conviction had contributed to protecting the reputation of others.
The Court therefore held unanimously that there had been a violation of Article 10.
The applicant’s conviction for defamation
The Court accepted that the disputed articles had dealt with matters of general interest, as the public had the right to be informed about investigations concerning politicians, including investigations which did not, on the face of it, relate to their political activities. Furthermore, the issues before the courts could be discussed at any time in the press and by the public.
As to the nature of the two articles, the Court pointed out that Mr Laranjeira Marques da Silva had simply imparted information concerning the criminal proceedings in question, despite adopting a critical stance towards the accused. The Court observed in that connection that it was not its place or that of the national courts to substitute their own views for those of the press as to what techniques of reporting should be adopted. As to the editor’s note, the Court took the view that, notwithstanding one sentence which was more properly to be regarded as a value judgment, it had had a sufficient basis in fact in the broader context of the media coverage of the case.
Hence, while the reasons given by the national courts for Mr Laranjeira Marques da Silva’s conviction had been relevant, the authorities had not given any pressing social reasons justifying the interference with the applicant’s right to freedom of expression. The Court further noted that the penalties imposed on the applicant had been excessive and liable to discourage the exercise of media freedom.
The Court therefore held, by five votes to two, that there had been a violation of Article 10.
Article 41
Under Article 41 (just satisfaction), the Court awarded the applicant EUR 5,703.83 in respect of pecuniary damage and EUR 3,000 for costs and expenses.