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In fact, the judges judge only according to the Constitution and the law, not having entailment of any kind, except the duty of compliance by lower courts of the decisions proclaimed, on appeal, by higher courts.
Paraphrasing the current Judge Counsellor President of the STJ, op. cit. p.44, The dialogue and the interaction between the European instance and the national instances has to assume, on the part of those, a position of great openness and the assumption of a culture of judicial cosmopolitism.
Which, nevertheless, does not fail to alert to situations in which the national margin of discretion is completely removed by transforming in fact, the ECHR in a fourth instance, contrary to the conventional model of control (op. cit. p. 42).
However, as it is said here (op. cit. p. 50) the international bodies, for their part, must also bear in mind the warning of Judge Jackson of the Supreme Court : We are not final because we are infallible, but we are infallible only because we are final (Note : in English in the text).
Consequently, he concludes (op. cit. p. 50), the interjurisdictional dialogue must be undertaken by national judges with intellectual rigor, without the radicalisms proper to any methodological nationalism.
Anyhow, there are matters that are more permeable to jurisprudential reading of the ECHR, therefore, in these cases, it is more appropriate to take them as reference.
This is the case with the case-law on freedom of expression, built on the interpretation and application of the art. 10° of the European Convention on Human Rights, which offers a host of extremely useful criteria for the national courts, already integrating a European consensus, so that internal decisions can not fail to take this case-law into account.
Such a consensus reveals a doctrine of enhanced protection of freedom of expression, in the terms referred to above, which is considered as super freedom and as one of the most precious rights of man.
However our case law on freedom of expression, in its confrontation with the right to honour, tends in general to uphold the primacy of the latter over the first (cf. inter alia, the judgements of the STJ of 26/4/94, 14/2/02, 7/3/02 and 8/3/07 in
www.dgsi.pt).
We acknowledge, indeed, that, while on the ECHR side the solution to the issues related to interference in freedom of expression is found by taking into account its exceptional nature and the central importance of that freedom in a democratic society, ...