THIRD SECTION
CASE OF ANTUNES EMÍDIO AND SOARES GOMES DA CRUZ
v. PORTUGAL
(Applications nos. 75637/13 and 8114/14)
 
 
 
 
 
 
JUDGMENT
STRASBOURG
24 September 2019
 
This judgment is final but it may be subject to editorial revision. In the case of Antunes Emídio and Soares Gomes da Cruz v. Portugal,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
 Helen Keller, President,
 Paulo Pinto de Albuquerque,
 María Elósegui, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 3 September 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in two applications (nos. 75637/13 and 8114/14) 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 two Portuguese nationals, Mr Joaquim António Antunes Emídio (“the first applicant”) and Mr Luís Manuel Soares Gomes da Cruz (“the second applicant”), on 26 November 2013 and 8 January 2014 respectively. 2. The applicants were represented by Mr J.D.C. Baptista and Mr Ricardo Sá Fernandes respectively, both lawyers practising in Lisbon. The Portuguese Government (“the Government”) were represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney General. 3. On 29 November 2017 notice of the complaints concerning Article 10 of the Convention was given to the Government and the remainder of application no. 8114/14 (Soares Gomes da Cruz v. Portugal) was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicants were born in 1955 and 1944 respectively. The first applicant lives in Santarém and the second applicant lives in Lisbon. Application no. 75637/13 (Antunes Emídio v. Portugal)
5. The first applicant is a journalist. At the relevant time he was also the Director-General of O Mirante, a regional weekly newspaper. 6. On 31 March 2011 O Mirante published an opinion article written by the first applicant entitled “Only chickens were left”, which contained criticism of the Portuguese political class. The article was also published on the newspaper’s blog. 7. In the article the applicant made statements about Mr R.B., at the time State Secretary for Agriculture, Forests and Rural Development. The relevant part of the article reads as follows:
“... His name is [R.B.], he is the most idiotic politician I know and he has been State Secretary for Agriculture and Forests for the last year and a half, in [J.S.’s] government. It is known for certain that one day he will be Minister of Finance, or Education, or Justice of some government, trusting the apparatus of the Socialist Party, where it seems that all the good people have gone on holiday and only the chickens were left ...”
8. Following the publication of the article in question, Mr R.B. lodged a criminal complaint against the first applicant with the Santarém public prosecutor’s office, accusing the applicant of defamation. 9. In a judgment of 20 July 2012 the first applicant was convicted of aggravated defamation by the Santarém Criminal Court pursuant to Articles 180 and 184 of the Portuguese Criminal Code. Balancing the first applicant’s freedom of expression against Mr R.B.’s right to reputation, the court concluded that the applicant’s statements amounted to value judgments which had no connection with Mr R.B.’s conduct as State Secretary. The court also found that the first applicant’s statements had gone beyond what could have been considered objective criticism. The applicant was accordingly convicted of defamation and sentenced to 250 day-fines, totalling 2,500 euros (EUR). He was also ordered to pay compensation of EUR 2,500 to Mr R.B. 10. On an appeal by the first applicant, the Évora Court of Appeal upheld the previous decision in a judgment of 28 May 2013. The court found that the applicant’s statements were subjective assessments which were not accompanied by any examples such as to allow an understanding of the reason behind the use of the word “idiotic”. Regarding the amount the applicant was ordered to pay in compensation for non-pecuniary damage, the Court of Appeal declared the appeal inadmissible because of the low value of the claim. 11. The applicant challenged the judgment of the Court of Appeal, arguing that it should be declared null and void and that a clarification was required. Both requests were dismissed by a judgment of the Évora Court of Appeal, on 1 October 2013. 12. On 20 November 2013 the first applicant paid Mr R.B. the amount of EUR 2,785.21. On 16 January 2014 he also paid the fine of EUR 2,500. Application no. 8114/14 (Soares Gomes da Cruz v. Portugal)Background to the case

13. The second applicant is a doctor and managing partner of the oldest company providing occupational health services in the town of Lourinhã, Clinic G.C. THS, Lda (“the clinic”). 14. In 2000 the clinic applied for accreditation with the Authority for Working Conditions (Autoridade para as Condições do Trabalho – “the ACT”), which it obtained in 2010. The absence of accreditation did not prevent the effective provision of occupational health services. 15. In 2009 the Lourinhã Town Council decided to set up an occupational health service. For that purpose the Town Council held direct negotiations (ajuste direto) with three companies providing occupational health services, E., P. and M. The clinic was not invited to the negotiations. 16. On an unknown date, the mayor of the Lourinhã Town Council, J.C., explained to the second applicant that the clinic had not been invited to the direct negotiations because it was not accredited by the ACT. 17. On 3 September 2009 the local newspaper Frente Oeste published an “Open letter to the mayor of the Lourinhã Town Council” written by the second applicant, which referred to the direct negotiations held by the Lourinhã Town Council. 18. The relevant parts of the article read as follows:
“... We thought it was strange that the clinic Dr G.C. THS, Lda ... was not invited... The reason for this letter lies in the huge anger (revolta) aroused by this total lack of honesty and seriousness and this cowardice on the part of the mayor. ... The Town Council operates like a hunting ground where hunting is only allowed for those whom the mayor wants ... This letter has nothing to do with politics, but with his lack of character and honesty and his cowardice, which I will publicly fight against... The citizens of Lourinhã missed a great opportunity to be happy when they did not elect ... – a true leader, with integrity, not subject to influence-peddling that is harmful for Lourinhã.”
19. Around a week and half later, the second applicant distributed a leaflet at the entrance of the town hall, reading as follows:
“... The mayor is not worthy, nor does he deserve to be the highest representative of the citizens of Lourinhã, since he rarely defends the community’s legitimate interests; on the contrary, he invests in local tribal chiefs in exchange for a lentil dish... It just so happens that the mayor, contrary to what he thinks and is told by his sycophants, is not loved among the serious and honest citizens of Lourinhã, but since most people are humble and poor, unfortunately you can mislead them with five cents’ worth of strained honey! It’s time that you were properly reported, unmasked, in a loyal and honest way, for your cowardice and dishonesty which you have displayed throughout your previous terms of office! But do we deserve such a cruel punishment? To have such an ungrateful and incompetent mayor?”
The criminal proceedings against the second applicant
20. Following a criminal complaint lodged by J.C. and the Lourinhã Town Council, criminal proceedings were initiated against the second applicant by the Lourinhã public prosecutor’s office. 21. On an unknown date Mr J.C. and the Lourinhã City Council were granted leave to intervene in the proceedings as assistants to the prosecuting authority (assistentes). They also lodged civil claims. 22. The proceedings were conducted before the Lourinhã District Court. At the hearing, the applicant explained that he had written the impugned article because he had felt outraged by the exclusion of his company from the negotiations on the ground of its lack of accreditation, since the E. and P. companies also lacked accreditation. 23. By a decision of 22 February 2013 the second applicant was convicted of two offences of libel through the media (publicidade e calúnia) under Articles 180, 183 and 184 of the Portuguese Criminal Code regarding the statements directed at Mr J.C., and one offence of insulting a legal entity (ofensa a organismo, serviço ou pessoa colectiva) under Article 187 of the Portuguese Criminal Code regarding the statements directed at the Town Council. The Lourinhã District Court sentenced the second applicant to a total of 450 day-fines, amounting to EUR 27,000. It also ordered him to pay EUR 6,000 in damages to Mr J.C. 24. In its judgment, the Lourinhã District Court balanced the second applicant’s freedom of expression against Mr J.C.’s right to his honour and reputation. It considered that the second applicant had not stated facts constituting criticism of Mr J.C.’s political conduct, but rather had made a statement of facts whose veracity had not been proved, such as “dishonest” and “coward”. The court did not consider it an established fact that J.C. had known that only one of the three companies invited to participate in the direct negotiations was accredited (see paragraph 22 above), that the M. company had already been selected in advance of the opening of the direct negotiations, that the second applicant was convinced that the direct negotiations procedure was not transparent and serious, or that he had acted with the intention of publicly denouncing the procedure. The court also found that the applicant had not proved the truthfulness of the sentence “[t]he Town Council operates like a hunting ground where hunting is only allowed for those whom the mayor wants”. Lastly, the court placed emphasis on the fact that the direct negotiations procedure was characterised by the possibility for the authority or service concerned to freely choose the invitees. 25. The second applicant appealed against that decision to the Lisbon Court of Appeal. 26. By a judgment of 3 July 2013 the Lisbon Court of Appeal, referring to the case-law of the European Court of Human Rights, concluded that some of the second applicant’s statements, such as that Mr J.C. was “dishonest” and a “coward”, had not been made in the context of any political discussion. Regarding the statements directed at the Town Council, the Court of Appeal agreed with the first-instance court that those statements were unfounded and unreasonable. It therefore upheld the second applicant’s conviction, reducing the amount of the fine to EUR 18,000 and the amount to be paid to Mr J.C. to EUR 4,500 plus interest. Its judgment was served on the applicant on 8 July 2013. 27. On 20 June 2014 the applicant was compelled to pay the compensation awarded to Mr J.C. On 20 May 2015 he also finished paying the fine. RELEVANT DOMESTIC LAW AND PRACTICE
28. The relevant domestic law and practice have been summarised in the Court’s judgments in Pinto Pinheiro Marques v. Portugal, no. 26671/09, §§ 20-22, 22 January 2015; Almeida Leitão Bento Fernandes v. Portugal, no. 25790/11, § 29, 12 March 2015; and Do Carmo de Portugal e Castro Câmara v. Portugal, no. 53139/11, §§ 16-17, 4 October 2016. THE LAW
JOINDER OF THE APPLICATIONS
29. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court). ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
30. The applicants complained that their conviction was in breach of their freedom of expression as provided for in 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. ... 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.”
Admissibility
31. The Court notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. MeritsThe parties’ arguments

(a)   Application no. 75637/13 (Antunes Emídio v. Portugal)
32. The first applicant contended that the article had expressed his view on the way the country was being governed, criticising the privileges enjoyed by some politicians and mentioning R.B. solely as an example. 33. The Government argued that the first applicant’s statements reflected personal feelings of mistrust regarding the political class and had no factual basis, thus not contributing to a public debate or being in the general or public interest. (b)   Application no. 8114/14 (Soares Gomes da Cruz v. Portugal)
34. The second applicant submitted that there was a public interest in the statements he had published, since he had been drawing attention to a lack of transparency that society had the right to know about. Regarding the direct negotiations procedure, he asserted that it was strange that the clinic had not been invited to take part because it did not have accreditation (see paragraph 16 above), since two of the companies invited had not had the same accreditation either (see paragraph 22 above). 35. The Government emphasised that the second applicant had not proved his statements regarding the direct negotiations procedure to be true. They further argued that direct negotiation was, in itself, a procedure which was characterised by the possibility for the service or authority concerned to freely choose the invitees (see paragraph 24 in fine above) and that the case was of no general interest to society. Regarding the amounts of the fine and the compensation that the applicant had been ordered to pay, the Government submitted that they were modest.

Outcome for Article 10: violation