DO CARMO DE PORTUGAL E CASTRO CAMARA v. PORTUGAL - 53139/11 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 798 (04 October 2016)

In the case of Do Carmo de Portugal e Castro Câmara v. Portugal,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          András Sajó, President,
          Nona Tsotsoria,
          Paulo Pinto de Albuquerque,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Gabriele Kucsko-Stadlmayer,
          Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 23 August 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 53139/11) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Portuguese national, Mr Carlos do Carmo de Portugal e Castro Câmara (“the applicant”), on 10 August 2011.

2. The applicant was represented by Mr F. Teixeira da Mota, a lawyer practising in Lisbon. The Portuguese Government (“the Government”) were represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney-General.

3. The applicant alleged that his freedom of expression under Article 10 of the Convention had been violated.

4. On 14 October 2015 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1957 and lives in Lisbon.

A. Background of the case

6. The applicant is a university professor. At the relevant time he was also a columnist for O Independente, a national weekly newspaper. The applicant had previously worked at the Portuguese Meteorological Institute (Instituto Português de Metereologia - hereinafter “the IM”) (since renamed the Portuguese Sea and Atmosphere Institute (Instituto Português do Mar e da Atmosfera), where he had acted as vice-president from May 2003 to April 2004 and where he had been the project coordinator of a project co-funded by the EU agency EUMETSAT from May 1998 until he was removed from this position by the President of the IM, A.S., on 6 January 2006.

7. On 3 March 2006 O Independente published an article entitled “Bad weather at the Institute”, which contained statements by the applicant on the problems faced in the implementation of the project.

8. The article also contained statements by A.S., which downplayed the applicant’s statements and cast aspersions on the applicant’s ability to lead the project, his professional capacity and seriousness. The relevant parts of the article read as follows:

“... Someone who does not share these views is the President of the IM, [A.S.], who has assured O Independente that ‘the project does not face any risk’ and denigrated Carlos Câmara, whom he does not recognise as having the ‘skills to evaluate the development of the project’, and his opinions ... With regard to Câmara leaving the project, [A.S.] mentioned that the former scientific coordinator ‘had broken a relationship of trust’, adding that his behaviour and his profile had led to his removal ...”

9. On 10 March 2006 O Independente published an opinion article, entitled “The Liar”, written by the applicant in reply to the article of 3 March 2006. The article was divided into three parts: i) the reasons he had decided to write the article; ii) the problems with the project in question, namely financial mismanagement and lack of staff; and iii) a reaction to the statements made by A.S. The relevant parts of the article read as follows:

“Last Friday, O Independente devoted an article to the circumstances surrounding my removal from scientific coordinator of the project...

Contacted by A.F.S., my declarations focused on two issues of extreme gravity since they undermine the operational functioning of the project: the lack of a cost centre for the financial management and the non-recruitment of the necessary elements for its execution. Naturally, the journalist attempted to get the other party’s opinion and so contacted the President of the IM, [A.S]. He could have either confirmed my statements or lie shamelessly. [He] opted for the latter and the issue ceased to be an incident (unfortunate) in my professional career to become something that deserved the attention of a chronicle.

In relation to the financial management, the President of the IM stated that ‘both the IM and the ‘manager’ of the project are aware of all the expenses and funding involved’. Clear and objective questions require clear and objective answers and the question is solely one of whether there is a cost centre and if, in 2005, the financial execution reports were regularly made showing that the amount of 1,187,135 euros - 768,315 euros of which received from EUMETSAT in the beginning of 2005 and the remainder 418,820 euros to be invested by the IM - was spent in accordance to the plan signed by the President. And it would be desirable that the reports were signed by the financial controller of the project, the existence of which is envisaged in the [project] plan but was never hired.

Regarding the lack of staff, the President of the IM stated that ‘the current coordinators counter this insufficiency’. Clear and objective questions require clear and objective answers and the only question that arises is whether the proposed contracts were in fact made. I say that no financial report was ever made nor any contract despite the existence - since October 2004! - of a list of names of people to hire.

By denying these facts - which are easy to demonstrate - the President shows that he is a liar ... Unlike the President of the IM - who without the political support he has wouldn’t be anything else other than an A. [referring to the President of the IM’s first name] - in the world in which I engage professionally, I don’t need to be a “coordinator” in order to have my expertise recognised. In that world - in which my expertise comes from peer recognition and is the result of the evaluation of my work - the President of the IM is nothing but a petty liar [mentiroso reles] and a poor wretch [pobre diabo]. And being the president is nothing more than a mere accident ... of base politics.”

B. Criminal proceedings against the applicant

10. On an unknown date A.S. lodged a criminal complaint against the applicant, accusing him of defamation. He alleged that the applicant’s article had disseminated defamatory statements about him. On an unknown date A.S. sought leave to participate in the proceedings as an assistant (with victim status) to the public prosecutor (assistente) and lodged a claim for damages against the applicant.

11. The Lisbon Criminal Court reviewed the documents which had been submitted to the proceedings and took oral evidence from witnesses and established that the applicant’s professional capacity and expertise in meteorology and climatology were highly recognised at the national and European levels. It further established that from 2004 to 2006, when the applicant had been coordinating the project, he had written various emails and memoranda which had been addressed to the manager of the project, C.T., and the Science Minister reporting problems in the implementation of the project, and an additional open letter to staff working for the IM; the applicant had also had a meeting with the Secretary of State for Science and Innovation where those problems had been discussed. Five witnesses testified that a tense relationship had existed between the applicant and A.S. at the IM.

12. By a judgment of 14 July 2010, the Lisbon Criminal Court convicted the applicant of aggravated defamation. According to the judgment, by making the impugned statements the applicant had wilfully defamed A.S. by making disparaging allegations in respect of him. The court further noted that the applicant’s article, and in particular the choice of the words “petty liar” and “poor wretch”, had been vindictive and a personal attack on A.S. The relevant parts of the judgment read as follows:

“The article published on 10 March 2006 was the culmination of a tense relationship between [the applicant] and the assistant to the public prosecutor and an example of their professional disagreements.

... following an analysis of the phrases used in the article, in particular “petty liar” and “poor wretch”, the court is of the opinion that [the applicant] did not limit himself to objective criticism within a professional context and veered into attacking the assistant, given that those value judgments go beyond mere professional criticism and fall within the hard core of the right to reputation.

... the phrases in question are objectively offensive. [The applicant], given his education and experience in the journalistic field, knew that those [phrases] were capable of undermining the assistant’s personal honour, as they did.

Even though [the applicant] has a sharp, direct and somehow incisive way of writing, he acknowledged in his first declarations that he would probably not use the same writing tone today. The truth is that [the applicant] exceeded himself by writing and addressing those phrases in respect of the assistant in an opinion article in a newspaper which, at the time, had a wide circulation.

...

In a cold and strict analysis of the facts which were established in the instant case ... there are no doubts that [the applicant] wanted, and managed, to libel the offended by imputing to him epithets such as the ‘President of the IM is nothing more than a petty liar and a poor wretch’ which are harmful to his personal and professional honour and by calling into question his personal competence and good name. They are value judgments and not statements of fact ...

...

The instant case does not fall in a political context. We are within a weather circle (círculo da metereologia) in which the President of the IM is at risk. As a person exercising a leadership position in a public body, he is subject to criticism ...

However ... there cannot be a total squeezing of the right to honour of the person concerned.

If throughout the article in question in the instant case [the applicant] objectively criticised the assistant’s professional performance, even in reply to the previous article published on 3 March 2006, he [the applicant] drifted into a personal attack motivated by a feeling of revenge when he stated that ‘the President of the IM is nothing more than a petty liar and a poor wretch’. In fact, [the applicant], dissatisfied with the fact that, in his opinion, the assistant had called into question his professional competence, used as a counterattack these value judgments which do not concern the work of the assistant but directly involved the person concerned.

While the word ‘liar’ would be a fact and as such addressed towards the professional performance of the assistant, the phrases ‘petty liar’ and ‘poor wretch’ constitute value judgments which, in the opinion of this court, are excluded from objective criticism and fall within the scope of a personal attack on the assistant.

...

In the instant case, [the applicant] knew that the offended was the President of the IM, a public body, and wrote those words about him in order to address the duties performed and the activity performed in relation to those functions.

...

[The applicant] went further than what his right to defence of the public interest and his right to criticism would allow. By making value judgments such as the ones examined, there cannot be grounds to excuse [the applicant] as the defence of public interest cannot justify such a squeezing of the right to honour and good name. The right to criticism has to remain within the objective criticism of the duties performed by the person concerned and not displace into personal criticism, into personal attack. In fact, the phrases had only one purpose - to be used as a counterattack to the interview given by the assistant to a journalist in which he mentioned that he did not consider that [the applicant] was competent to evaluate the progression of the programme, and with the aim of downgrading and humiliating the assistant.”

13. The Lisbon Criminal Court sentenced the applicant to 250 day fines, totalling 2,000 euros (EUR). He was also ordered to pay EUR 3,000 in damages to A.S.

14. On an unknown date the applicant appealed against the judgment to the Lisbon Court of Appeal.

15. On 17 February 2011 the Lisbon Court of Appeal upheld the first-instance decision. The relevant parts of the judgment read as follows:

“In the instant case the phrases ‘petty liar’ and ‘poor wretch’, in the context of the written piece concerning the professional relationship between the assistant and [the applicant], their academic background and their personal relationship, cannot be disregarded as [the applicant] wishes. Despite the possibility of ‘widening’ the scope of the concept of freedom of expression, [the applicant]’s education enables us to understand that he meant what he said. In other words, he cannot claim that the word ‘liar’ was not from the ethical and moral point of view ‘innocent’ and even less when the adjective ‘petty’ is added ... [The applicant] could probably have achieved the ‘informative’ result which he wanted by only [saying] ‘misrepresenting the truth’. However, that did not happen as he added an adjective to the expression in such a way as to make a sharper negative evaluation of the person concerned. And, in our opinion, [he did so] in an unnecessary and disproportionate way.

There is no need to argue that the professional status of the parties makes freedom of expression unlimited, in comparison with other situations where the parties involved are not national figures.

What happens must be precisely the opposite. Not only because it is not normal for high-level civil servants to use bad language, but also because their knowledge and education ordain that they accept and solve their professional disagreements without resorting to personal ‘attacks’ in public discussions.

...

Even within this context of tense professional relationship, there can be doubt that the phrases “petty liar” and “poor wretch” are objectively defamatory, capable of undermining one’s character and how one is considered ...

In this regard, [the applicant]’s desired freedom of expression went much further than the limits covered by criticism by entering into the sphere of the offence of honour (an indivisible feeling, referring both to the professional and personal aspect [of the individual]) and into the scope of defamation.”

II. RELEVANT DOMESTIC LAW

16. The Portuguese Criminal Code provides as follows:

Article 180 § 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.”

17. Article 184 of the Criminal Code increases the sentence by half if the victim is a civil servant.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

18. The applicant complained that his right to freedom of expression had been interfered with, in breach of Article 10 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

A. Admissibility

19. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

20. The applicant observed that his criminal conviction had been an interference prescribed by law which had pursued a legitimate aim. However, he claimed that that interference had not been necessary as there had been no pressing social need to convict him. Thus, his criminal conviction had been a disproportionate interference with his right to freedom of expression.

21. He argued that the opinion article had been a reply to various serious attacks on his personality and capacity made by A.S. and that the argument at stake had concerned matters of public interest: the words and acts of the President of the IM, a State official appointed by the executive. In addition, he contended that there had been an ongoing dialogue in the public sphere which had begun with the interview given by the President of the IM to which he had replied. The applicant acknowledged that he had used strong words in order to reply to the serious accusations made against him. However, what he had written had been supported by the facts mentioned in his article.

22. Lastly, the applicant concluded by underlining the undue chilling effect that criminal sanctions had on freedom of expression.

(b) The Government

23. The Government pointed out that when the applicant referred to A.S. as a “petty liar” and a “poor wretch” he had exceeded the limits of acceptable criticism. In the Government’s view, by using those phrases the applicant had drifted into a personal attack contrary to the content of the preceding text of the article, which had addressed A.S.’s professional performance.

24. The Government considered that the phrases used by the applicant constituted an assault on A.S.’s honour and reputation. They further argued that he had intentionally gone beyond the limits of acceptable criticism. As such, the phrases used did not deserve the protection afforded by the right to freedom of expression, in particular because the personal attack on A.S. did not concern any topic of public interest.

25. The Government considered that A.S. had had a leadership position in a public institution. In that regard the execution of his functions had been a matter of public interest and, consequently, open to public scrutiny. However, when the debate concerned personal issues, the limits to acceptable criticism had to differ and could not be as wide. As A.S. had not been a politician, the degree of scrutiny could not have been the same.

26. Lastly, the Government argued that the applicant’s conviction had not been in breach of his right to freedom of expression and had respected the requirements established under Article 10 § 2 of the Convention.

2. The Court’s assessment

27. It is not disputed between the parties that the final judgment given in the case brought by A.S. interfered with the applicant’s right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.

28. The interference in question, executed under Article 180 § 1 of the Portuguese Criminal Code, was “prescribed by law”, and it pursued the legitimate aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2.

29. It remains to be ascertained whether the interference was necessary in a democratic society.

(a) General principles

30. The general principles for assessing the necessity of an interference with the exercise of freedom of expression were recently restated in Bédat v. Switzerland ([GC], no. 56925/08, § 48, 29 March 2016) and Pentikäinen v. Finland ([GC], no. 11882/10, § 87, 20 October 2015):

“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...

(ii) The adjective ‘necessary’ within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.

(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”

31. In this connection, the Court reiterates that in order to assess the justification of an impugned statement, a distinction needs to be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof (see Pinto Pinheiro Marques v. Portugal, no. 26671/09, § 43, 22 January 2015). The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive (see Mustafa Erdoğan and Others v. Turkey, nos. 346/04 and 39779/04, § 36, 27 May 2014). As regards value judgments which have been found by the national courts to be of a defamatory character, the Court has assessed the national court’s findings on the question of whether the language used in the statement was of an excessive or dispassionate nature, whether an intention of defaming or stigmatising the opponent was disclosed, and if the statement had a sufficient factual basis (see, among others, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, §§ 56-57, ECHR 2007-I; and Aurelian Oprea v. Romania, no. 12138/08, § 71, 19 January 2016).

32. The Court further reiterates that a clear distinction must be made between criticism and insult. If the sole intent of a particular form of expression is to insult a person, an appropriate sanction would not, in principle, constitute a violation of Article 10 of the Convention (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 67, ECHR 2011).

33. Where a form of expression can be seen as a reaction to an article previously published in the press, in order to assess whether the reply concerns an issue of public interest, the Court should take into account both the first article and the reply (see, mutatis mutandis, Smolorz v. Poland, no. 17446/07, §§ 37 and 38, 16 October 2012; and Gouveia Gomes Fernandes and Freitas e Costa v. Portugal, no. 1529/08, § 47, 29 March 2011).

34. When called upon to examine the necessity of an interference in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10, and on the other the right to respect for private life, enshrined in Article 8 (see Mustafa Erdoğan and Others, cited above, § 37).

(b) Application of these principles to the present case

35. Turning to the facts of the present case, the Court notes that the applicant was convicted because of the opinion article he published in the weekly newspaper O Independente and, in particular, for having written that A.S. was “a petty liar” and “a poor wretch” (see paragraphs 12 and 15 above). The Court must therefore ascertain whether the domestic authorities struck a fair balance between the applicant’s right to freedom of expression and A.S.’s right to protection of reputation (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 91, ECHR 2015).

36. The Court observes that the applicant is a university professor and the former coordinator of a project developed by the IM, a public institution, and co-funded by an EU Agency. It further notes that in his article - which he wrote in reply to the one published on 3 March 2006 - the applicant gave an additional explanation of the existing difficulties in the implementation of the project upon his removal from the post of coordinator. The applicant also gave his opinion on how A.S., as president of the IM, had publicly addressed those problems by downplaying his statements and casting aspersions on his professional skills and ability to lead a project funded by public money, specifically EU funding.

37. There is no doubt that the publication, taken as a whole and in context, and analysed in the light of the above-mentioned case-law precedents, concerned an issue about which the public had a legitimate interest in being informed in view of the public nature and funding of the project as noted above (see paragraph 36 above). The Court reiterates in this connection there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 102, ECHR 2013 (extracts); Lopes Gomes da Silva v. Portugal, no. 37698/97, § 33, ECHR 2000-X).

38. In the present case the Portuguese courts characterised the applicant’s statements as value judgments and found him liable for insulting A.S. with those allegations, which they considered to be a personal attack and an insult to his honour and reputation. The Court observes that the domestic courts focused their analysis on the impact that the impugned part of the applicant’s article had on A.S.’s honour and reputation but failed to assess whether the applicant’s statements had been based on sufficient facts in order to constitute a fair comment under Article 10 (see paragraphs 12 and 15 above).

39. The Court notes in this respect that the domestic courts established, through documents and witness statements, that the applicant took several initiatives to bring to the attention of the IM and the Ministry of Science the problems in the management of the project which he, as a coordinator, had identified (see paragraph 11 above). The Court further notes that the applicant was also able to prove that his professional and academic competencies had been highly recognised at both the national and European level. These facts were disregarded by the domestic courts in the analysis of the context of the impugned part of the article. The domestic courts thus lost sight of the article’s overall content (see Perna v. Italy [GC], no. 48898/99, § 47, ECHR 2003-V).

40. In the Court’s view, a person who manages an institution financed from the public purse should be prepared to accept hard-hitting criticism particularly in the course of a public debate where matters of management of a project paid for with such funds are being discussed (see, mutatis mutandis, Kurłowicz v. Poland, no. 41029/06, § 50, 22 June 2010). In this regard, the Court notes that the applicant’s criticism of A.S., as the President of the IM, concerned his behaviour and statements made in his professional capacity, rather than in his private life. The Court reiterates in this connection that senior civil servants acting in an official capacity are subject to wider limits of acceptable criticism than private individuals (see Aurelian Oprea, cited above, § 74).

41. With regard in particular to the statements that A.S. was “a petty liar”, the Court further notes that the case bears similarities to Kulís v. Poland (no. 15601/02, 18 March 2008), where the applicant had published an interview with a lawyer in which the latter had stated that a Deputy Speaker of the lower house of the Polish Parliament was a liar in the context of an investigation of a kidnapping; to Almeida Azevedo v. Portugal (no. 43924/02, 23 January 2007), where the applicant described a mayor as being a liar and a manipulator; and to Niskasaari and Otavamedia Oy v. Finland (no. 32297/10, 23 June 2015), where the applicant, a journalist, had been convicted for defamation for having criticised the work of a colleague by calling him a liar. In all these cases the Court considered that the applicants’ statements had had a sufficient factual basis and thus had not been excessive. A similar position was taken by the Court in two other cases, within the academic domain, where the applicant had issued statements considering that an elected academic senate had been illegitimate (see Kharlamov v. Russia, no. 27447/07, § 31, 8 October 2015) or where the applicant had accused an assistant professor of plagiarism (see Aurelian Oprea, cited above, § 71). In the instant case, however, the Court notes that the domestic courts did not take into account that the expression “petty liar” concerned the applicant’s opinion on A.S.’s denial of the existing management and financial problems with the project in question and, consequently, it had originated from a factual dispute (see paragraphs 9 and 11 above).

42. With regard to the expression “poor wretch”, the Court considers that this impugned statement might be seen as triggered by a prior public attack by A.S. to the applicant’s professional skills (see paragraph 8 above).

43. In the instant case, the Court considers that, even though the impugned statements were strongly worded and could be considered offensive, the applicant reacted to a public attack of A.S. In this context, and taking into consideration that the applicant had supported his statements with a certain factual background (see, mutatis mutandis, Lopes Gomes da Silva, cited above, § 34), his reaction did not convey a gratuitous personal attack. In addition, the Court recalls that persons taking part in a public debate on a matter of general concern are allowed to have recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements (see, Marian Maciejewski v. Poland, no. 34447/05, § 79, 13 January 2015, with further references). Where there is no factual basis, such statements could, admittedly, appear excessive; but in the light of the established facts that is not so in the instant case (see, mutatis mutandis, Lopes Gomes da Silva, cited above, § 34).

44. Lastly, the Court reiterates that the nature and severity of the penalty imposed are factors to be taken into account when assessing the proportionality of the interference (see, for example, Pentikäinen, cited above, § 112). In the present case, the applicant was subjected to a criminal sanction and sentenced to 250 day fines, totaling EUR 2,000. In addition, he was ordered to pay EUR 3,000 in compensation to A.S. (see paragraph 13 above). Having regard to the circumstances of the case, the Court considers that the applicant’s conviction to a criminal fine, coupled with damages, was not proportionate (see, mutatis mutandis, Amorim Giestas and Jesus Costa Bordalo v. Portugal, no. 37840/10, § 36, 3 April 2014).

45. In the light of the above, the Court finds that the domestic courts failed to strike a fair balance between the relevant interests and to establish a “pressing social need” for putting the protection of A.S.’s reputation above the applicant’s right to freedom of expression. Therefore, the Court considers that the domestic courts overstepped the narrow margin of appreciation afforded to them in matters of public interest and that the interference was not “necessary in a democratic society”.

46. There has, accordingly, been a violation of Article 10 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

47. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

48. The applicant claimed 5,000 euros (EUR) in respect of pecuniary damage, representing the amount he had been ordered to pay to A.S. in non-pecuniary damages and the amount of the fine imposed on him by the Lisbon Court of Appeal. The applicant did not claim non-pecuniary damage.

49. The Government contested the claim. In their view, the finding of a violation would enable the applicant to lodge an application for the review of the judgment in his case before the domestic courts. Thus, the payment of compensation for any damage suffered by the applicant would be premature.

50. In the Court’s view the applicant suffered pecuniary damage as a result of the domestic courts’ judgments which were incompatible with the Convention requirements. The Court awards the applicant EUR 5,000, the equivalent of the sums he had to pay as a fine and that which he was ordered to pay to A.S. in respect of non-pecuniary damage.

51. As the applicant made no claim in respect of non-pecuniary damage, no award is made in that regard.

B. Costs and expenses

52. The applicant claimed EUR 1,232.16 for the costs and expenses incurred before the domestic courts. He also claimed an amount of EUR 5,000 plus EUR 1,150 in taxes in lawyer’s fees. He stated that, in this regard, he had already paid EUR 1,200, for which he submitted a receipt.

53. The Government left the matter to the Court’s discretion.

54. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes that the applicant sufficiently substantiated that most of these sums had been actually and necessarily incurred, by submitting the relevant invoices and other evidence. However, the Court does not find it sufficiently proved that the total amount claimed in lawyer’s fees will be effectively incurred. Therefore, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500 covering costs under all heads.

C. Default interest

55. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 10 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 4 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti András Sajó
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> DO CARMO DE PORTUGAL E CASTRO CAMARA v. PORTUGAL - 53139/11 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 798 (04 October 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/798.html Cite as: ECLI:CE:ECHR:2016:1004JUD005313911, [2016] ECHR 798, CE:ECHR:2016:1004JUD005313911