CASE OF TAVARES DE ALMEIDA FERNANDES AND ALMEIDA FERNANDES v. PORTUGAL
Remainder inadmissible (Article 35-3 - Ratione personae);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque
5. The applicants are husband and wife. They were both born in 1957 and live in Colares. 6. The first applicant is a well-known journalist in Portugal. At the time in question he was the editor of the daily newspaper Público. 7. On 29 September 2006 the newspaper published an editorial written by the first applicant entitled “The strategy of the spider” (“A estratégia da aranha”); the editorial addressed the election of the President of the Supreme Court of Justice, which had taken place the day before. The article expressed the first applicant’s opinion of the newly elected President, Judge N.N., and on what his election meant for the Portuguese judicial system. The first applicant’s editorial reads as follows: “The strategy of the spider N.N., the man who will be presiding over the Supreme Court, represents the dark side of our judiciary. Do you want a symbol, a representative, an exemplar of the wrongs of the Portuguese judicial system? That’s easy: simply mention the name of N.N. and all the wrongs you can think of regarding corporatism, conservatism, atavism, manipulation, games of shadows and influence immediately spring to mind. The judge – because we are talking about a judge – is a man as intelligent as he is Machiavellian. For years, first in the Trade Union Association of Judges [Associação Sindical dos Juízes], then [as a member of] the High Council of the Judiciary [Conselho Superior da Magistratura – hereinafter “the HCJ”], and lastly [sitting on] the Supreme Court of Justice, this person – of whom the majority of Portuguese people have never heard – has been weaving a web of connections, of back-scratching, of favours and undertakings (there is an even worse word, but I will avoid it) which enabled him yesterday to stick into his somewhat tousled mane the peacock feather he has been lacking: the presidency of the Supreme Court of Justice. The position is not worth very much (who, among the readers, knows that the current president of that court is, formally, the fourth-highest-ranking figure of State?). It carries some sinecures, perhaps some perks ... but it has little effective power. The problem, however, lies in this question: has, or will have [effective power]? The gentlemen judges, who some time ago engaged in a dispute with [the judges of] the Constitutional Court to determine who occupied the more important place in the hierarchy (those of the Supreme Court won ... but gave to those of the Constitutional Court the consolation of having at their disposal a high-end car ...) aren’t even much respected. [That is] their own fault, as it is known that they occupy their seats in the Supreme Court only for some months in order to beef up their pensions. The president of that giant college of most reverend judges has had little power; [however,] ... N.N. presented himself to the voters – that is to say, to his peers, and those whom he helped to promote to a position from which one day they would be able to elect him – under the kind of manifesto which makes the hair of the most peaceful citizen stand on end. The man didn’t do this out of the goodness of his own heart: at the same time that he was acting as a trade unionist (he asked for an increase in his salary and that less work be given to judges ...) he acted as someone who wanted to overthrow the regime (by wanting to sit on the Council of State [Conselho de Estado]) and added the glittering (due to the amount of accumulated tallow) hat of “resister” of reforms in the judicial sector. If it was advisable for a President of the Supreme Court to pay greater attention to Montesquieu and the principle of the separation of powers than to the playbook of the CGTP [General Confederation of Portuguese Workers], N.N. did exactly the opposite. He laid out his demands in the grandiose manner of a steelworker in a futuristic “socialist realism” painting, forgetting that he is a judge and the highest representative of the third [branch of government], the judiciary, and claimed a place at the table of the “first [branch]”, the executive. It is true that the power of the Council of State is as innocuous as the plume of being president of the Supreme Court, but the claim has in itself two perversities. Firstly, it is a sign that N.N. cares more about his public prominence than the problems of justice. Secondly, and much more serious, the man is volunteering himself to be the face of a group of judges [that is] against the reforming decisions of those holding political power which are currently the subject of a broad consensus between the government party and the main opposition force. It is so pathetic as to make one laugh, were we not in Portugal and if we did not understand how the strategies of the spiders work. The man, I believe without fear of contradiction, is so intelligent and skilful as to be dangerous. But he already has an opponent: the new Attorney-General of the Republic, P.M., one of the rare people to have had the courage to stand up to him.” 8. There was coverage of the election in the days preceding and following it in various articles in the national press. One of those articles, published in Público on 6 August 2006, was an interview with a member (juiz conselheiro) of the Supreme Court of Justice, P.M., who had severely criticised the electoral system for the post of President of the Supreme Court of Justice. The relevant parts of the interview read as follows: “... Q.: Why don’t you agree with the current system of electing the President of the Supreme Court of Justice (SCJ)? P.M.: One of the functions of the High Council of Judiciary (HCJ) is the grading of judges who rise to the post of member of the SCJ. How do they get to the Supreme Court? Through a competition, and an assessment of their work by the members of the HCJ. Among those members there is a president of judges who, obviously ... has a certain degree of control over [those judges]. It does not cross anyone’s mind that they aren’t people whom he trusts ... and I myself am not questioning those people. What is at stake is the system. Q.: Because it creates inequality, is that it? P.M.: Just look at what happens. The Vice-President of the HCJ is one of the key figures in the choosing of members of the SCJ. That man should never be able to run [for elections to the SCJ] because those who are going to elect him are those whom he has graded. Q.: Are you saying it is a distorted system [sistema viciado]? P.M.: It is a distorted system ... It is not the people – they are all serious and honest; the problem is the system itself. Q.: Do you support a change to the rules of [elections] to the post of President of the SCJ? P.M.: Yes; the way these [elections] work raises doubts and questions. It is an election which has the appearance of being distorted. Whether it is, I don’t know ... But it is clear that if [a person] has a key role in the admission of A or B to an [organisation], then when [that person] has a vote he is going to vote for the person who admitted him.” 9. Between 2001 and 2006 several articles on the system of elections to the post of President of the Supreme Court of Justice were published in the media within the context of elections held within that period. Some of these articles called the system into question. For example, on 13 July 2004, Diário de Notícias published an article, written by L.L. and entitled “Grading of judges may involve a strategy of power” (“Graduação de juízes pode envolver estratégia de poder”), for which he had interviewed a judge who had challenged the 2004 [competition] to the Supreme Court and who had made allegations that Judge N.N. had been behind the alleged strategy. In that article, L.L. made reference to a document circulating among judges in which it was alleged that “N.N. prepared the grading of judges in order to secure a sufficient number of votes for him to be elected as President of the SCJ in the next election.” 10. On 7 December 2007 Judge N.N. brought an action in the Lisbon Civil Court against the applicants for defamation. He sought non-pecuniary damages amounting to 150,000 euros (EUR). The applicants contested the action against them and argued that the second applicant should not have been a party (ela era parte ilegítima) in that she had neither benefited from the article nor had had previous knowledge of it. In fact, the second applicant had not participated at all in the writing or publication of the first applicant’s article; the civil proceedings for defamation had been instituted against her on the basis of Articles 1691 and 1695 of the Portuguese Civil Code. 11. During the proceedings the first applicant attempted to prove, inter alia, (i) that he had based his opinion on the different articles that had been published in the media on the elections to the Supreme Court of Justice, on information obtained from a source whose identity was confidential, and on conversations he had had with different people from the judiciary (including judges who had challenged the results of the competition for posts as judge in 2004); (ii) that the article concerned an issue of public interest; and (iii) that he had written it in good faith. In this regard, several witnesses, including journalists and people from the judiciary (comunidade judiciária), were heard. The relevant statements read as follows: (i) M.P., chairman of the Bar Association from 2007 to 2013, with whom the first applicant talked, mentioned that he had had conversations with Judge N.N.’s opponents, who had made references to the methods Judge N.N. used to obtain what he wanted; (ii) M.J., a former President of the Bar Association, considered that the first applicant had made a political criticism and that he had not intended to attack the man personally but rather in his capacity as a politician and in terms of his way of engaging in politics and of his career, which had been based on trade unionism; (iii) L.L. mentioned that he had contacted, regarding the article he had written, different people from the judiciary (judges who had raised suspicions regarding the competition to the Supreme Court, judges from the trade union association of judges, and prosecutors) about Judge N.N. and the system of elections to the Supreme Court; he also acknowledged that he had not talked with members of the HCJ or with Judge N.N. about the issue. 12. On 13 November 2009 the Lisbon Civil Court found for the plaintiff. It considered that the article in question had damaged the plaintiff’s reputation and that the expressions used by the first applicant had been disproportionate and had clearly exceeded the limits on freedom of expression. It considered that the article had diminished public confidence in Judge N.N. and in the High Council of the Judiciary, thus damaging his honour and reputation. The first applicant was ordered to pay EUR 35,000 in compensation for non-pecuniary damage. With regard to the second applicant, the Lisbon Civil Court held that under Article 1692 of the Civil Code she should not have been a party to the proceedings and that the compensation amount due arose from an action only attributable to the first applicant. The relevant parts of the judgment read as follows: “... The editorial is ... the responsibility of its editors ..., appears in each edition of the publication and focuses on the most important events of the day or of that edition and aims to comment, analyse, urge – in sum, form opinion. ... The editorial in question was published on 29 September 2006 – the day immediately following the plaintiff’s election as President of the Supreme Court of Justice. The established facts demonstrate to us that the plaintiff, as a member of the Supreme Court of Justice, applied for the post of president of that court and was elected with 53 votes out of a possible 72 votes, which means that he was elected by 73.6% [of the possible votes]. This is the context of the editorial. ... [The editorial examines] the plaintiff on two levels: how he, allegedly, managed to achieve the electoral results; and his electoral programme as a candidate for election to the presidency of the Supreme Court. With regard to the first topic ... in [the editorial] there is no expression of any value judgment. It is stated as a fact – as a manner of behaviour on the part of the plaintiff: that the plaintiff helped those who elected him to rise to the post of member of the Supreme Court of Justice, given the function that he exercised throughout his life as a union leader and as both a member and Vice-President of the High Council of the Judiciary. The essential aim was to state that throughout his life, the plaintiff had pursued a strategy [to attain power] which had built a college of electors in which he could have confidence, [pursuing that aim] via the functions he had exercised, particularly [during his time at] the HCJ. It is true that the plaintiff was leader of the trade union association of judges, a member of the HCJ between 1989 and 1990 (and Vice-President between 2001 and 2004) and on 28 September 2006 was elected President of the Supreme Court. ... The defendant did not prove the veracity of this allegation. The defendant further argues that the opinion expressed in the editorial was based – given the lack of transparency of the whole procedure – on his knowledge of the ongoing public debate about the election of the President of the Supreme Court of Justice, of the functioning of the High Council of the Judiciary, and of the plaintiff. ... In the instant case it is established that when the defendant wrote the editorial, he was familiar with the news and opinions mentioned in documents [contained in the case file] ... and had talked to people. The facts established concern the publication of several articles on the above-mentioned topics ... However it is not understood how or to what extent these articles allowed the applicant to reach the conclusion that: “For years, first in the trade union association of judges then [as a member of] the High Council of the Judiciary, and lastly [sitting on] the Supreme Court of Justice, this person – of whom the majority of the Portuguese have never heard – has been weaving a web of connections, of back-scratching, of favours and undertakings (there is an even worse word but I will avoid it) which enabled him yesterday to stick into his somewhat tousled mane the peacock feather he has been lacking: the presidency of the Supreme Court of Justice. ... In the light of the above, there is nothing which allows us to reach the conclusion that the defendant had determined the veracity of his comments [by means of accessing] credible, diverse and verifiable sources of information. ... [With regard to the plaintiff’s] electoral programme as a candidate in the election of the President of the Supreme Court of Justice ... [t]he statements he made in support of that programme] have some factual basis. In fact, it was proved that in the letter he distributed to his colleagues, the plaintiff, as a candidate for the presidency of the Supreme Court, defended the enshrinement – through a constitutional revision – of the President of the Supreme Court as a permanent member of the Council of State, as well as the improvement in a timely manner, consistent with the economic situation of the country, of the remuneration of members of the Supreme Court of Justice. The plaintiff’s opinions may be – and in a democratic state are – subject to criticism, even more so when they are expressed within the context of his candidacy in the election of the President of the Supreme Court of Justice. ...” 13. On an unknown date, both the first applicant and Judge N.N. lodged appeals against the first-instance judgment with the Lisbon Court of Appeal. The first applicant argued, inter alia, that the judgment of the Lisbon court had breached his freedom of expression and should therefore be overturned. He further contended that the compensation amount that he had been required to pay was extremely high and contested some of the facts that had been established by the court. He argued that he had obtained some information only on condition that the source providing that information would remain anonymous. 14. In his appeal Judge N.N. argued that the level of compensation should have been set at a higher amount and that the second applicant should have been considered a party to the proceedings. 15. On 9 November 2010 the Lisbon Court of Appeal upheld the first-instance judgment. It held that some of the first applicant’s comments had not exceeded the limits on freedom of expression, but that most of the content of the article had constituted an attack on Judge N.N.’s honour, honesty and reputation. The Court of Appeal emphasised that the first applicant had exceeded his right to criticise and inform. It further considered that the first applicant had not been able to prove in the proceedings the veracity of some of the allegations made in the article, even though they had been based on previous articles published in the Portuguese media about Judge N.N. and his election as President of the Supreme Court of Justice. With regard to the facts, the Lisbon Court of Appeal considered that the facts had been correctly established. 16. The Lisbon Court of Appeal ordered the applicants jointly to pay Judge N.N. EUR 60,000, plus interest, in compensation for non-pecuniary damage. It considered the second applicant to be a legitimate party to the proceedings and, with regard to her, it based its decision on the fact that the applicants were married under the community property system (regime de comunhão de adquiridos) and she did not have any source of income and that therefore, under the Portuguese Civil Code, the income earned by the first applicant as a journalist and editor of a newspaper directly benefited both of them. 17. On an unknown date in November 2010 the applicants and Judge N.N., respectively, lodged an appeal and a cross-appeal (recurso subordinado) against that judgment with the Supreme Court of Justice. 18. On 15 December 2011 the Supreme Court of Justice declined to examine the applicants’ appeal. It considered that the judgment of the Lisbon Court of Appeal had not clearly identified all those facts which it had considered to be proven; this made it impossible for the Supreme Court to hear the appeal. The Supreme Court ordered that the case be remitted to the Lisbon Court of Appeal in order for it to correct its statement of facts; this would enable the Supreme Court of Justice to analyse the points of law that had been raised. 19. On 13 November 2012 the Lisbon Court of Appeal delivered a new judgment in which it upheld its previous judgment of 9 November 2010. As to the facts, the Lisbon Court of Appeal considered, inter alia, the following to have been established: (i) the plaintiff had been the only candidate for the post of President of Supreme Court of Justice and had previously been a member and the Vice-President of the High Council of the Judiciary; (ii) several articles had been published in the press and in blogs (in the periods preceding and following the election) about Judge N.N. and his electoral programme and past elections for the presidency of the Supreme Court of Justice; (iii) on 6 August 2008 the newspaper Público had published an interview with P.M., a member of the Supreme Court of Justice, in which he had questioned the system of elections to the post of President of the Supreme Court of Justice on the grounds that it could be distorted in so far as the HCJ’s functions included the grading of judges who ascended to the post of member of the Supreme Court; (iv) with regard to a past competition to the Supreme Court of Justice, the daily newspaper Diário de Notícias had, in 2004, published two different articles in which it had raised questions about the grading of judges by the HCJ and the possible power strategy involved; in one of the articles (for one of which a judge of a Court of Appeal who had participated in the competition had been interviewed and for which a document known to judges had been consulted) it had been mentioned that Judge N.N. had already mustered support for his election in the next elections for the post of President of Supreme Court; (v) in 2001 Público had published an editorial [by the then editor] criticising the system of electing the President of the Supreme Court and of HCJ judges; with regard to the latter, criticism was made of Judge N.N.’s lobbying on his own account of while exercising his functions as union leader; (vi) the first applicant’s editorial had received both positive and negative comments in the press and in blogs; (vii) the first applicant had had knowledge of the different articles which had been published in the media before the elections and had spoken to different people about them, Judge N.N. and the functioning of the HCJ. 20. As to the analysis of the merits of the case, the relevant parts of the judgment read as follows: “... In the present case, it is important to take into account [the fact] that the person referred to in the ... text written by the defendant is a public figure, being the fourth-highest-ranking figure of State: the President of the Supreme Court of Justice. Despite his being a public figure, and therefore more liable to [be the target of] public criticism, his honour is still protected ... ... ... [I]t is important to emphasise that it appeared in the period which followed the election of the President of the Supreme Court of Justice by his peers. ... ... the text does not affect the plaintiff only as a public figure but also in his strictly personal sphere. In fact, starting with the latter, the expressions “which enabled him yesterday to stick into his somewhat tousled mane the peacock feather he has been lacking” and “... and added the glittering (due to the amount of accumulated tallow) hat of ‘resister’ of reforms in the judicial sector” seem to manifestly extend beyond the right to inform and to criticise, attacking the plaintiff’s personal dignity within his private sphere ... ... In sum, the above-mentioned segment [of the editorial article] exceeds the proportionality inherent in the legitimate purpose of debate and critical information ... That is not the case when the defendant attributes corporatism, conservatism and atavism to the plaintiff. ... ... [T]hese expressions fall within the scope of what has to be borne by a public figure ... ... Let us now analyse the passages where it is said that we face a man and judge who “has been weaving a web of connections, of back-scratching, of favours and undertakings (there is an even worse word but I will avoid it)” and who “presented himself to the voters – that is to say, to his peers, and those whom he helped to promote to a position from which one day they would be able to elect him”. ... ... [T]he above-mentioned passages put into question the professional ethics of the plaintiff in the exercise of his functions... ... However in the instant case there was no proof given of the allegations against the plaintiff; on the contrary, ... the right to inform was exceeded.” 21. With regard to the amount awarded to Judge N.N. in pecuniary damages, the Lisbon Court of Appeal held as follows: “In the instant case, the non-pecuniary damage, reflected in the violation of the right to a good name and the reputation of the plaintiff, given its severity ... had ... a negative impact in the personal sphere, including his family and professional circle, of the plaintiff. ... Besides that, and this is the decisive point for the determination of the amount to be awarded, the piece written by the defendant, despite the degree of offence and suffering [caused to] the plaintiff, was not an obstacle to his re-election by a large majority (larger than that previously, as everybody knew) to the same post. As such, the severity of what the defendant wrote did not have an impact on the professional future of the plaintiff ... In this context, it is also important to take into account the average amount ascribed to the value of life under the case-law of the Supreme Court of Justice (which is nowadays increasing): EUR 60,000. In the light of the above, and under the applicable legal framework, it is appropriate to award the amount of EUR 60,000.” 22. On 21 November 2012 and 6 December 2012 Judge N.N. and the applicants respectively lodged with the Supreme Court of Justice an appeal and a cross-appeal against the judgment of the Lisbon Court of Appeal. On 25 January 2013 the applicants submitted their grounds of appeal. They complained, inter alia, that the judgment of the Lisbon Court of Appeal of 13 November 2012 was in breach of freedom of expression and that the amount which they had been ordered to pay as compensation to Judge N.N. was excessive. 23. On 22 February 2013 the appeals before the Supreme Court of Justice were discontinued on the ground that Judge N.N. had not submitted any grounds of appeal (julgado deserto o recurso e caducado o recurso subordinado). As a consequence, the applicants were unable to challenge the outcome of the judgment of the Lisbon Court of Appeal of 13 November 2012.