Another defeat in the ECHR for Portugal relating to their application of Article 10. I think he had highlighted the same issues McCanns had faced at the hands of the Judiciary.
Famous journalist Freitas Rangel’s conviction for statements about associations
of judges and prosecutors breached the European Convention
In today’s Chamber judgment1
in the case of Freitas Rangel v. Portugal (application no. 78873/13)
the European Court of Human Rights held, unanimously, that there had been:
a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.
The case concerned the applicant’s conviction for statements made about the professional bodies
for judges and for public prosecutors at a hearing of a parliamentary committee. In particular, he
had linked the judiciary and the prosecution service to, among other things, interference in politics
and widespread breaches of confidentiality. He had been convicted and had had to pay 56,000
euros in fines and damages in total.
The Court found in particular that the fine and the damages had been wholly disproportionate and
had to have had a chilling effect on political discussion. The domestic courts had failed to give
adequate reasoning for such interference with the applicant’s free speech rights, which had not
been necessary in a democratic society.
Principal facts
The applicant, Emídio Arnaldo Freitas Rangel, was a Portuguese national who was born in 1947 and
lived in Lisbon. He passed away in 2014 and his daughters took up the application in his stead.
Mr Freitas Rangel was a very well-known journalist.
In 2010 he gave evidence at a parliamentary committee on the topic of freedom of expression and
the media in Portugal. Among other wide-ranging testimony, he stated as follows:
“… There is no democracy without quality journalism. However, the situation has got worse. This
circle has recently seen the entry – and this is the trend [modismo] of modern times – of the
professional associations of judges and public prosecutors. These are two hubs managing
information relating to judicial cases [duas centrais de gestão de informação processual], which is
achieved through close ties with journalists. They obtain documents concerning judicial cases for
journalists to publish, exchange these documents at cafés, in the open; … breach[ing] the duty of
judicial confidentiality [segredo de justiça], they really will share the documents. This is not going to
end well, Mr President, honourable members of parliament, if we do not return to a time with rules
preventing the judiciary from engaging in politics.”
Later, in response to a question from a journalist, he stated the following:
“Where does the material covered by judicial confidentiality come from? Can it only come from the
justice system itself? …, what I have seen is an extensive and broad political intervention with
negative consequences … They try to limit the decisions of the Attorney-General [Procurador Geral
da República] and [to influence] public opinion, and they have privileged relationships with
journalists to whom, from time to time, they pass on documents dealing with various topics.”
[
1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,
any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges
considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final
judgment. If the referral request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.}
Further information about the execution process can be found here:
www.coe.int/t/dghl/monitoring/execution.
2
Mr Freitas Rangel later made further statements before other bodies and in the press confirming
what he had said before the committee.
In mid-2010 the Professional Association of Judges (Associação Sindical de Juízes Portugueses – “the
ASJP”) and the Professional Association of Public Prosecutors (Sindicato dos Magistrados do
Ministério Público – “the SMMP”) separately lodged criminal complaints against Mr Freitas Rangel
for “insulting a legal entity” (ofensa a pessoa colectiva). He was convicted in 2012 on two counts of
insulting a legal entity by the Lisbon Criminal Court, ordered to pay damages of 50,000 euros (EUR)
to each plaintiff and fined EUR 6,000. The court reasoned that it was sufficient for the perpetrator to
have acted with general criminal intent (dolo genérico), even just to attribute falsehoods, or even
offensive value judgments, to the legal entities in question. That judgment was broadly upheld on
appeal by the Lisbon Court of Appeal, with the damages being lowered to EUR 10,000 to each
plaintiff.
The two professional associations appealed to the Supreme Court, complaining about the amount
awarded. The Supreme Court found partly in their favour and increased the damages to EUR 25,000
each, citing the damage to reputation caused.
The damages were paid to the ASJP in full. However, the unpaid balance of the damages to the
SMMP were transferred to Mr Freitas Rangel’s estate following his death.
Complaints, procedure and composition of the Court
Relying on Article 10 (freedom of expression) of the European Convention, the applicant
complained, in particular, that his conviction and punishment had been in breach of his right to
freedom of expression.
The application was lodged with the European Court of Human Rights on 5 December 2013.
Judgment was given by a Chamber of seven judges, composed as follows:
Yonko Grozev (Bulgaria), President,
Tim Eicke (the United Kingdom),
Faris Vehabović (Bosnia and Herzegovina),
Gabriele Kucsko-Stadlmayer (Austria),
Pere Pastor Vilanova (Andorra),
Jolien Schukking (the Netherlands),
Ana Maria Guerra Martins (Portugal),
and also Andrea Tamietti, Section Registrar.
Decision of the Court
Firstly, the Court noted that the ASJP and the SMMP were reputable professional associations which
are frequently invited to present their views before Parliament on matters connected to the
functioning of justice.
The Court considered that the issues about which the applicant had spoken before the
parliamentary committee – the sharing of confidential information with journalists to advance
political objectives – was of interest to the public. Most of the statements had been the applicant’s
opinions, rather than statements of fact. While the wording may have been unfortunate, the
comments could be interpreted as an illustration of a broader societal critique regarding the
inappropriate intervention of the judiciary as a whole in politics and the media, which was a subject
of public interest and which he had believed to be true. Furthermore, political speech was afforded
special protection in the Court’s case-law.
3
The Court reiterated that the protection of the reputation of a legal entity did not have the same
strength as the protection of the reputation or rights of individuals.
The Court observed that the reasoning of the appellate court had been based solely on the rights of
the professional associations, rather than balancing their rights with those of the applicant. The
Court held that the fine and the damages had been wholly disproportionate and had to have had a
chilling effect on political discussion.
Overall, the Court found that the domestic courts had failed to give adequate reasoning for their
interference with the applicant’s free-speech rights, concluding that the interference had not been
necessary in a democratic society.
There had been a violation of Article 10 of the Convention.
Just satisfaction (Article 41)
The Court held that Portugal was to pay the applicant’s estate 31,500 euros (EUR) in respect of
pecuniary damage, and EUR 19,874.23 in respect of costs and expenses.
The judgment is available only in English.
