CASE OF SOARES v. PORTUGAL
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1957 and lives in Góis. 6. At the relevant time, the applicant was a chief corporal in the National Republican Guard (Guarda Nacional Republicana), working at the Góis territorial post. 7. On 7 November 2009 the applicant sent an email to the General Inspectorate of Internal Administration (Inspecção-Geral da Administração Interna) on the subject “Suspected misuse of money”, in which he made reference to an alleged misuse of money by Commander M.C. of the Arganil territorial post in accordance with what he had heard in a conversation with colleagues at the Arganil territorial post. He asked the General Inspectorate to investigate the alleged facts, stating as follows: “In the month of December 2008 the Coimbra [National Republican Guard] Territorial Group distributed money to the territorial posts of its area of command ... for the Christmas dinner ... The only members of the military [in Arganil] who attended the dinner were the Commander of the post and Corporal M.; the total amount of money that had been given to the military from the [territorial] post [to pay for the dinner] was paid to the restaurant’s manager in exchange for a receipt ... it seems that the Commander has since then been going with his family to the mentioned restaurant, where the cost of his meals is deducted from the money that was not spent [on the above dinner] ... Note: I have just become aware of this matter through rumours within the military of the mentioned post, who claim that they have not reported the situation for fear of reprisals, and because of that [fear of reprisals] I ask you for secrecy during the investigation because I am also a member of the military ...” 8. On an unknown date the General Inspectorate of Internal Administration forwarded the email to the General Command of the National Republican Guard (Comando Geral da Guarda Nacional Republicana) and to the Lousã public prosecutor’s office (Ministério Público). 9. On an unknown date the Lousã public prosecutor’s office opened an investigation into the applicant’s allegations. On 28 February 2010 the Lousã public prosecutor’s office discontinued the proceedings on the grounds that, following investigations by the criminal investigation police (Policía Judiciária), it had found no evidence of the criminal offence denounced by the applicant. 10. The General Inspectorate of Internal Administration also conducted an inquiry into the applicant’s allegations. On 21 June 2010 the inquiry was discontinued. 11. The General Command of the National Republican Guard also started an internal inquiry into the allegations on 4 December 2009. On 23 December 2009 Commander M.C. was heard in that respect. He then became aware of the email of 7 November 2009 and its content. On 9 February 2010 the inquiry was converted into disciplinary proceedings against Commander M.C. at the request of the official in charge of the inquiry on the grounds that the management of the cafeteria of the Arganil territorial post showed signs of lack of transparency which required further investigation. 12. On 30 July 2010 the disciplinary proceedings against Commander M.C. were discontinued on the grounds that there was insufficient evidence to take disciplinary action. The decision to discontinue the disciplinary proceedings also took into account the decision of the Lousã public prosecutor’s office to discontinue the criminal proceedings against Commander M.C. 13. On 22 April 2010 Commander M.C. lodged a criminal complaint before the Lousã public prosecutor’s office, accusing the applicant of defamation. He alleged that the applicant’s email had disseminated injurious statements about him. 14. On 7 July 2011 the public prosecutor brought charges (acusação) against the applicant for aggravated defamation on the grounds that the statements made in his email called into question Commander M.C.’s honesty, honour and professional reputation, which the applicant had intentionally attacked. 15. On 21 September 2011 Commander M.C. lodged a claim for damages against the applicant in the amount of 5,000 euros (EUR). 16. In a judgment of 17 January 2012 the Lousã Criminal Court convicted the applicant of aggravated defamation and sentenced him to eighty day-fines, totalling EUR 720 euros. The applicant was also ordered to pay EUR 1,000 in damages to Commander M.C. The Court described its findings of fact and the manner in which it had assessed the evidence, and held as follows: “... since the existence of such a rumor has not been proved in any way, the court is fully convinced that the defendant’s intention was to undermine the honour of the offended party, once he knew that this was just a rumour and that therefore he was making an allegation that was not true. ... The allegation made in the defendant’s complaint, by its content, put into question the offended party’s honesty, honour and professional reputation as commander of a territorial post of the National Republican Guard – which was well known to the defendant. The defendant has therefore acted in a free, voluntary and conscious way, with the achieved aim of attacking the offended party’s honour and personal and professional reputation. ... The disclosure of irregular situations has to be seen as a duty (as the performance of an obligation) when it falls within the competence and responsibilities of the whistle-blower and when it does not go beyond the facts which were effectively observed. [Whistle-blowing] cannot be used as a basis to cast suspicion which cannot be supported by any factual element. In the instant case, the defendant accuses the offended party of facts which are objectively dishonorable without having any evidence to substantiate them. Indeed, by submitting that the offended party and his family were using the existing credit to have dinner at the mentioned restaurant, the defendant knew that he was accusing the offended party of a dishonorable deed, all the more because he knew that the offended party was in charge of the National Republican Guard’s Arganil territorial post. He further knew that the allegation was inconsistent with the truth and that he could easily have clarified its authenticity with the restaurant owner. Through such conduct, the defendant acted of his own free will and in the knowledge that ... [his actions] were not allowed.” 17. On an unknown date the applicant appealed against the judgment to the Coimbra Court of Appeal. In particular, he contested the established facts as, in his opinion, he had not acted with the intention of attacking Commander M.C.’s honour and reputation. 18. On 19 September 2012 the Coimbra Court of Appeal upheld the first-instance court’s decision. It considered that there were no reasons to change the facts established by the first-instance court and, as such, no reasons to reach a different conclusion with regard to the applicant’s guilt and conviction. 19. On 3 August 2011 the General Command of the National Republican Guard instituted disciplinary proceedings against the applicant. 20. On 20 February 2013 the official in charge of the inquiry within the disciplinary proceedings against the applicant submitted a final report in which he concluded that the applicant had breached his duties. The relevant passage of the report reads as follows: “... the defendant breached the duty of loyalty... as being on duty and being part of the Góis Territorial Post in the quality of Deputy Commander of the Post, he did not inform his hierarchical superiors, in clear disregard of the functional hierarchy principles, of the acts allegedly committed ...” 21. In the report it was also taken into account that the applicant’s allegations had been investigated by different authorities, all of which had discontinued their investigations. Additionally, it had regard to the fact that the applicant had been convicted by the domestic courts in the criminal proceedings against him. The report further analysed the existence of a fine which Commander M.C. had imposed on the applicant before the latter had sent the impugned email. However, the official responsible for the report considered that fact to be innocuous and irrelevant. 22. On 27 March 2013, at the request of the official responsible for the disciplinary proceedings, the General Command imposed on the applicant a disciplinary sanction consisting of suspension from duty for six days, its enforcement being suspended for a period of twelve months. 23. According to the material submitted in the case file, it seems that the applicant did not lodge an appeal against the disciplinary sanction with the Minister of Home Affairs.